text:
    No. 9916.
    J. G. Gayden vs. Louisville, Nashville, New Orleans and Texas Railroad Company.
    A remittitur entered after the verdict of a jury has been rendered, in a case in which, the matter in dispute, the sum demanded, exceeds §2000, does not cut off defendant’s right to appeal from a judgment rendered against him. This is so particularly when he objects to the remittitur being permitted, and the court allows it without prejudice to his right of appeal, and where the plaintiff himself afterwards appealed.
    The failure of plaintiff to perfect his appeal does not relieve him from the imputation of admission of the appealable character of the suit
    The condition that-, should a railroad not he built within a stated time, the contract giving right of way shall be null and void, is resoluotry in character.
    "Until the dissolution is judicially demanded for non-performance, the obligor has the right to comply with his part of the contract.
    An obligee who is present during the prerformance of the obligation, after the expiration of the delay, who does not object, and allows the work to be completed, cannot b6 permitted by suit, brought more than a year afterward, to demand the value of the land taken for the building of the road, and claim damages, consequent on the use of the grant, and which were notin the contemplation of the parties, when the contract was entered into.
    APPEAL from Hie Sixteenth District Court, Parish of East Feliciana. Brame, judge ad hoe.

      Merrick & ’Merrick, Oalhoim FInker and J). J. Wedge for Plaintiff and Appellee:
    1 After a remittitur has been properly entered before judgment reducing the demand below the jurisdiction of the Supreme Court, the lower court cannot by any explanatory remarks oust the Court of Appeals of appellate jurisdiction and confer it on the Supreme Court.
    2. Where a grant of right of way to a railroad company was made on condition that the grant should be null aud void if the company did not complete the road in eighteen months, the lapse of time without the completion of the road leaves the condition broken. O. 0.2038; Dalloz Code Civil Annoté, p. 1024, Art. 1176, No. 1; 17 Laurent, pp. 86 and 87, No. 73.

      T. J. Kernem and Farrar & Kruttsehmtt for Defendant and Appellant: ON MOTION TO DISMISS.
    1. Articles 491 and 572 of the Code of Practice establishes a fundamental difference between trials before the court and trials before a jury. 5 N. S. 642; 7 M. 490; 9 R. 240 ; 16 Ann. 431-4.
    2. A remittitur after verdict is equivalent to a remittitur after judgment, and neither can cut off the defendant’s right of appeal. 16 Ann. 431-4.
    ON MERITS.
    1. A corporation cannot he sued outside of the parish of its domicile for damages arising from the alleged passive breach of a’contraot. Montgomery vs. La. Levee Co., 30 Ann. 607; Gossiu vs. Williams aud Morgan’s L. aud T. Ry. Co., 36 Ann. 186.
    o. The grant of right of way made by the plaintiff to the defendant is a bar to this action.
    3. The condition expressed in the grant, that it should be void if the road was not completed within eighteen months, was nothing but an express resolutory condition, whore the happening of the condition depended on the act of one of the parties, and ivas, therefore, not dissolved of right by the failure of the party to do, and could only be dissolved by a preliminary default followed by a suit to dissolve, ü. G. Art. 2047.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiff claims that this Court has no juris • diction over this controversy, the matter in dispute not exceeding $2,000.'

The suit is for $4,000 for the value of certain lands and for damages done to others.

After issue joined and evidence adduced, the case was submitted to a jury, who returned a verdict for $500 for the plaintiff.

An offer was then made by plaintiff to enter a remittitur for all demands exceeding $2,000. To this the defendants objected as concerned their right of appeal. The court sustained the objection, allowing the motion however, but without prejudice to the right of appeal.

There was judgment for five hundred dollars for plaintiff, from which defendants appeal.

The plaintiff also appealed, but did not perfect his appeal by giving bond.

There are several reasons for which the motion to dismiss ought not to prevail.

The motion for a remittitm- was offered too late.

It is true that a party plaintiff has the right to discontinue his suit, but that privilege cannot be exercised under all and any circumstances. The law discriminates.

Where the suit is before the judge alone, the discontinuance can be allowed only when asked before, never after judgment. C. P. 491.

Where the suit is before a jury, it must be asked before the case is submitted to the jury, until the moment when the jury is about to retire. C. P. 532.

When there is a ^conventional demand, the plaintiff is not permitted to discontinue, so as to affect that demand.

This doctrine has been announced in Applegate vs. Morgan, 5 N. S. 642, and has been applied in several instances.

See Chedoteau vs Dominguez, 7 M. 490; Warfield vs. Ludewig, 9 R. 240.

In the case of LeBlanc, 16 Ann. 431, the then Court overruled the motion to dismiss.

It appears there, that, before the verdict was taken in the lower court, the plaintiff moved to amend his petition by remitting $710 of his demand for $1,000; but on objection of the defendant, the amendment was not allowed, plaintiff excepting, however.

The jury returned a verdict for $800, and thereupon plaintiff entered a remittitur for all except $299, for which judgment was rendered against the defendant, who afterwards appealed.

The Court held that the appeal was from a Subsisting demand of $1,000, and it took jurisdiction over the controversy. It first remanded the ease with instructions; but, on a rehearing, gave judgment for defendants.

In the instant case, although it appears that the lower court allowed the remittitur to be entered, the fact is, that the remittitur was permitted, expressly, without prejudice to the defendant’s right of appeal.

A remittitur is in the nature of a discontinuance and is governed by the same rules.

The record shows, besides, that after the defendant company had appealed, the plaintiff himself appealed.

It is true that he did not perfect Ms appeal; but the fact remains that He considered the case as appealable, otherwise lie would not have appealed.

We therefore conclude that the remittitur entered in this case could not and did not prejudice the right of defendant to appeal.

The motion to dismiss is overruled.

On Exceptions.

The plaintiff sued for $6,000 damages, claimed on five different grounds:

1st. Value of right of way;

2d. Value of twenty acres of land rendered useless;

3d. Damages to plantation rendered less valuable;

4th. Damages by failure to complete road within eighteen months;

5th. Losses incurred and profits missed in certain operations.

The defendant excepted to the jurisdiction of the Court as to claims 4 and 5, which are for the passive breach of a contract and which can be enforced only at the domicile of the corporation in New Orleans.

The defendant likewise excepted to claims 1, 2 and 8, but on account of vagueness.

The Court sustained the exception to the jurisdiction, overruled the others; requiring plaintiff, however, to amend the allegation touching the second claim, which was done.

Defendant excepted again on the gronnd of no cause of action, and asked the dismissal of the suit; but the Court overruled these objections.

The only claims now in dispute are those set forth as 1,2 and 3.

We are therefore dispensed from passing on the ruling as to the question of jurisdiction; the more so as no amendment of the judgment is asked by the appellee.

On the Merits.

It appears that, on August 19,1882, the plaintiff granted, bargained and sold to the company a right of way, 100 feet broad, 50 feet on each side of the centre of a railroad to be constructed by defendant, on such line as the company might thereafter adopt as a permanent location for its road — in consideration of the benefits and advantages to be derived from the construction of the road.

The concession was made with the understanding that, should the railroad not be built within eighteen months from date of agreement, the contract shall be null and void.

This suit is brought on the assumption that the condition of building, within eighteen months, not having been complied with, tiie contract is null and void and therefore that the plaintiff is entitled to the value of the lands taken and to the damage done by the company.

There is no averment that the corporation was put in default.

The evidence shows that, authorized by the grant, the company entered upon plaintiff’s lands and, in March, April and May, 1883, built its road-bed, and in March of the following year laid its track through plaintiff’s place; that the first train from New Orleans to Wilson ran in June, and through to Memphis between two and three months later • — August or September, 1884.

Tt also shows that, while the work was progressing, the plaintiff was frequently present, interposing no objection; that the road was graded and the work performed with due precaution- as to drainage, protection by cattle-guards and wagon crossings.

The map or plat in the record apparently shows that the route pursued was judiciously selected.

There is no charge or evidence that the defendant has misused the the right of way conceded by the plaintiff.

The claim foy value and for damages might have a standing, but for the contract of August 19, 1882.

TIence the question is:

Whether that contract has or not been dissolved.

It is true that it provides that should the railroad be not built within eighteen months from the date, then the contract shall be null and void.

It is also true that, although the work was begun some seven months after the date of the contract, the road was not terminated until March, 1884, and that it was used in June and in September following-.

It does not however follow, that, on that account, the contract was ipso facto dissolved. Delsol, V. 3, No. 821.

The plaintiff contends that the decision of the ease is to be controlled by Art. 2038 R. C. C., which provides that: “When an obligation has been contracted on condition that an event shall happen -within a limited time, the contract is considered as broken when the time has expired without the event having taken place.”

Plaintiff leaves out of view other provisions of law on the subject of resolutory conditions which bear upen this question.

The Code defines the dissolving condition as that which, when accomplished, operates the revocation of the obligation, placing matters in the same state, as though the obligation had not existed. R. C. C. 2045.

It further declares, that the obligation is implied in all commutative contracts, to take effect in case either of the parties do not comply with his engagements, in which case the contract is not dissolved of right. It leaves to the party complaining a right to sue for its dissolution with damages, or exact specific performance, according to circumstances.

Indeed, the law wisely so provides, for the obvious reason that, although the obligor may apparently be in default, still he may not be so in reality, and for some good reason, such as vis major, obstruction by the obligee, actual or constructive extension of time, etc. This is the reason for which, according to circumstances, the court may allow some further delay for compliance with the obligation. Delsol, vol. 3, p. 483, No. 821.

When the resolutory condition is an event, not dependent on the will of either party, the contract is dissolved of right; but when that event is dependent on such will, the contract is not absolutely dissolved of right, and its dissolution must be judicially sought. R. C. C. 2047.

Under the spirit and letter of the law, the resolutory condition may therefore consist in an event which does not depend, in any man-er on the act of the parties, or it may have for object a fact depend-mt on the will of one them.

In the first-case, it operates its effect of right, while in the second, he party complaining may exercise the right which results from the ondition, only by having it judicially ordered as a penal clause.

The article relied on by plaintiff refers to an event not dependent on the parties; the others allude to acts dependent on the will of either party. With this distiction the case is clear.

Had the plaintiff sued the defendent at the expiration of the eighteen months within which the railroad was to have been built, a differ-' ent case would have been presented.

The building of that road within that time was a resolutory condition which, by non-compliance, would have had the effect of dissolving the contract, as the event was dependent on the will of the defendant; but the dissolution could not take place and be enforced, unless judicially demanded and declared.

There can be no doubt that the defendants, having failed, without excuse, to build the road within the time limited, the grantor had the right to avail himself of dereliction, and could have had the grant annulled, even in the absence of the express stipulation in the contract, which, as it reads, does not, however, magnify or secure better that right. The law implies such right even when not expressed, on the ground of equity.

By not insisting at the proper time on that right and by permitting the grantees to perform their obligation after the delay had expired, the grantor has lost the right to be heard to demand the dissolution.

Such a contract under that state of things, was not, as a matter of course, dissolved of right by the non-observance by the obligors of the obligation assumed by them. As long as they were not sued for the dissolution, the latter had a right to go on in the performance of their obligation.

The articles of our Code are literal extracts from the French Code. It is in the sense which we have expressed that the provisions in the latter have been understood and expounded. R. C. C. 1912, 2047, 2563; C. N. 1183, 1184.

We have examined the French authorities relied on by the plaintiff, but they do not apply, as they refer to the case of an imeertain event, not dependent on the will of either of the parties.

The record shows that it is not until some fifteen months after the road was in running order (September, 1884) that the present suit was brought-(January, 1886).

Under such circumstances, it is manifest that the plaintiff has no right of action; the less so, as the value of the land taken and the dam - ages said to have been sustained must have been considered by the plaintiff and covered by the benefits to be derived, when the parties entered into the contract of August 12,1882.

The refusal of the district judge to give to the jury certain charges asked by the company, is an explanation of the verdict which was rendered in the ease and which is unwarranted by the evidence and the law.

It is therefore ordered and decreed, that the verdict of the jury be set aside and that the judgment upon it be reversed; and

It is further ordered and adjudged that plaintiff’s demand be rejected with judgment in favor of the defendant company, with costs in both courts.


source: Caselaw Access Project

author: Watkins, J. Eennek, J.

license: Public Domain

text:
    No. 9661.
    Heirs of Leonard vs. City of Baton Rouge.
    In order that recovery be had nnder R. S. sec 318, the following conditions must concur cur, viz:

      First. The evidence most show that the plaintiff is a riparian proprietor of the property-in dispute.

      Second. That there has formed an accretion or batture, in front of same, more than is necessary for public use.

      Third. That defendant withholds this accretion or batture.
    Batture is an elevation of the bed of a river under the surface of the water; but it is sometimes used to signify the same elevation when it has risen above the surface.
    The term batture is applied, principally, to certain portions of the "bed of the Mississippi river which are lelt dry when the water is low, and are covered again, either iu whole or in part, by the annual swells.
    The banks of a river are not sold;' they pass as an accessory of the contiguous land when sold, and the property of the bank belongs to the adjacent proprietor.
    When the sovereign grants land contiguous to the river without mentioning the bank, it passes as an accessory, and it must do so by the deeds of private citizens.
    Under the laws of .France and Spain, batture did not belong to .the cities and towns as riparian owners, in the sense of actual and indefeasible ownership, but solely for the purposes of administration.
    The possession of the locus m quo by a city simply for administration, and not in con* sistent with the ownership in the riparian proprietor, and destined in its nature to terminate upon the happening of a certain contingency, cannot be pleaded against tbo latter as a basis for prescription.
    Land, after being set apart for public use, and enjoyed as such, and private and individual rights acquired with reference thereto, the law considers it iu the nature of an estoppel in pais, which precludes the original owner from denying the dedication.
    A city or town is not authorized to construct permanent edifices upon the batture, to the detriment of the riparian proprietor, or to the injury or inconvenience of the public, but it may construct those which may be of public utility and advantage.
    The use of the property as a landiDg and wharf for the reception of coal-boats and coal, is a. public use, the public character of which is not destroyed by the fact that it is temporarily farmed out to particular parties.
    Clio original proprietors are not entitled to recover the revenues paid by such parties as a consideration for the privileges, because such revenues result from the exercise of the public easement itself, and not from use independent thereof.

      APPEAL from the Seventeenth District Court, Parish of East Baton Bouge. Burgess, J.

      G. I). Fmrot, K. A. Gross and James Wilkinson for Plaintiffs and Appellants:
    There is a perfect and an imperfect dedication of property to public use under both the civi* and common law. The former is a donation and passes the fee j the latter is a qualified dedication, and under the common lawis termed an “ easement,” under the civil law “ a servitude of public use." 30 Ann. 64; Rev. C. C. art. 482; Dillon on Man. Co rpM 3d ed., par. 638.
    Any other classing of this qualified dedication creates a distinction without a difference. The rules of the Civil Code concerning servitudes are all applicable to the present cause. Torres vs. Palgoulst, 37 Ann. 506.
    An implied qualified dedication can never result under the civil law from long continued user, where such rights or servitudes require the act of man to use them. Rev. C. C. 765, 767.
    The common law differs in this respect. The leading case of Cincinnati vs. White, 6 Peters 431, is shown herein to be in our favor.
    Ho one is presumed to give away his property, and he who avers a divestiture of ownership must prove it clearly. Torres vs. Palgoulst, 37 Ann. 506.
    Where a servitude of passage has been dedicated on a map or plan for the use of the public— and the boundary of that street has not been defined, the measure of the use by and the needs of the public will regulate tbe extent of tbe dedication — and defendant, by virtue of such dedication, cannot claim property which is in blank on tbe plan, neither used or necessary for a stre.et, and seek to use the same as a right of common, right of way for a railroad, and lease out tbe exclusive use of the balance to private parties. R. C. O. 722, 780, 753.
    Whore property is claimed to have been ceded or transferred by individuals in this Stato, tbe principles of the civil law and articles of the Civil Code govern the case. Torres vs. Palgoulst, 37 Ann. 498.
    Defendant’s pleas are grossly inconsistent.
    Ho dedication of this property either absolute or qualified has been shown.
    Ho public use thereof has been shown.
    Defendant has failed to put forward the defense that Article 455 of the Revised Civil Code gave the public a legal servitude on this property.
    This defense would have been a judicial admission of ownership in favor of plaintiffs, and would have entitled us on the face of the pleadings to the rents and revenues collected by tbe city from piivate parties. Rev. C. C. 455; 31 Ann. 65; Rev. C. C, 722.
    Plaintiffs, as owners of this land, have the exclusive right under the circumstances to receive any rents or profits which same may have produced. Deniston vs. Walton, 8 Robinson; Chase vs. Turner, 10 La. 20; Hicholls vs. Byrne, 11 La. 173; Dillon on Hun. Corporations, par. 633; Carrollton R. R. Co. vs. Wintlirop, 5 Ann. 36; Heirs of Duverge vs, Salter & Harcy, 6 Ann. 450; Lyons vs. Hinckley, 12 Ann. 655.

      Fmrot <fb Lamon and T. Jones Ch'oss for Defendants and Appellees:
    1. At the time of the cession of Louisiana by Spain to Prance, and by Prance to tbe United States, and at the time when the United States took possession of the Florida parishes, all that portion of the land covered by the highest rise of the water to its lowest ebb, in front of Baton Rouge, belonged to the town. 9fch Law, Tit. 20, of Partidas 3; 23d Law, Tit, 32, of Partidas 3: Rocopilation Law 1, Book 4, Tit, 13; Law Toro, 1st Tit. 7th, Book 5,Becopilation Law 1, Tit. 7, Book 5; Hovissema Bocopilaoion, Book 7, Tit. 16, Law 1; H. O. vs. D. S., 10 P. 724 to 736 ; 3 M. 309, 303; 7IT.S, 90, et seq., 634; 5 L. 166,167, et seq.

    2. The Supreme Court of this State must conform its decisions to those of the Supreme Court of the United States, on questions involving the alienation of the public domain and the interpretation of treaties and Acts of Congress. 3 Ann. 56; 4 Ann. 423.
    3. To «ucceed under Section 318 of B, S. of 1870, plaintiffs must be: 1st. "Riparian owners. 2d. Entitled to the right of accretion. 3d. A batture must be formed in front of their land, more than is necessary for public use. 4th. The city of Baton Bouge must withhold it from the owner of the riparian property; a portion of the batture should not be necessary for public use.
    4. Plaintiffs, in order to claim the riverfront, must show as a condition precedent that when the proporty was divided into lots the alluvian was of sufficient height and magnitude to be susceptible of private ownership. 7 H. S. 625; 9 M. 656 ; 6 M. 19.
    5. If the presumption is that the riparian owner does not in a sale convey the alluvian susceptible of private ownership (35 Ann. 210), the converse of the proposition should also be true, that when there is no batture outside susceptible of private ownership, the owner is presumed to sell everything to the water’s edge.
    6. The right of the city of Baton Bouge to the river front claimed by plaintiff cannot be divested by any act of the Legislature, except one in the exercise of the right of eminent domain and for valuable consideration. U. S. Constitution, art, 1. secs. 4 and 9.
    7. The division of an empire works no forfeiture to pre-existing vested rights to property, and this maxim is equally consonant with the common sense of mankind and the maxims of eternal justice. Tevret vs. Taylor, 9 C. 43, 50; Trustees oí Dartmouth College vs. Woodward, 4 W. 651, 707; Society of the Gospel vs. New Haven, 8 W. 480.
    8. If plaintiffs ever had rights to the river front, they have divested themselves by dedication to public use and their acquiescence in its use as a locus publicus. In this no particular form is necessary. All that is required is the assent of the owner and the fact of its being used for the public purposes intended by the appropriation. Cincinnati vs. Whites, lessees, 6 P. 431; Beatty et als, vs. Kurtz et al., 2 P. 566; Town of Pawlet vs. Clark et al., 9 C. 292; Municipality vs. Cotton Press, 18 L. 122; Livaudais vs. Municipality, 16 L. 509; David vs. Municipality, 14 Ann. 873; 3 Ann. 282; 18 Ann. 560; 22 Ann. 526.
    9. After dedication is made and private and individual rights have been acquired with reference to it, the law considers it in the nature of an estoppel in pais, which precludes the original owner from revoking such dedication. 6 p. 438.
    10. If by a plan property dedicated to public use extends to the river’s edgo, it is sufficient to show its destination to public use. H. O. vs. U. S., 10 P. 734.
    U. When maps establish dedication and by use for a long period of time, it is conclusive. 10 P. 718.
    12. Presumption of dedication exists in civil law. 10 P. 721.
    13. We commend to plaintiffs the first broad and general principle of law mentioned in the “Corpus Juni Civilis,"1 to wit: honeste rivere, “to act honestly,’* from which is derived the maxim, polliciti servare, “ when we make a promise to keep it,” and the necessary corollary, turpe est /idem fatiere, “it is shameful to disappoint expectations one has authorized.”
    14. • The city of Baton Bouge, the defendant, has undoubted right and authority to administer and dispose of its river front. The levee forms the bank of the river. 18 L. 175, last paragraph; C. C. 448, 446; B. C. C. 455,457, Ergo. If the use of the streets in Baton Bouge is public and their police regulated by the corporation, the latter has a right to raise Eront street by allowing the passage of a railroad thereon. If the-embankmeut which is built is a levee, which protects lots Ho. 1 to 5 from overflow, the use of the property in front of the levee remains pnblio, and the city exercises rights over it consistent with law.
   The opinion of the Court was delivered by

Watkins, J.

Plaintiffs, alleging themselves to be the heirs of Gilbert Leonard, deceased, instituted this suit for the recovery of a tract of land, purchased by their ancestor in 1810, of Celestino De St. Maxeut, and which he caused to be laid off and divided in town lots; and averred that same constituted one of the environs of the city of Baton Rouge, and is designated upon the map of the city as Leonard town, and which extends along the Mississippi river, between the terminal points of North Boulevard and Convention streets,.in that city.

They allege that Leonard town was laid off to Front street, but the control and administration of the property, on the river side of said Front street, has been assmned and retained, on the ground that it was necessary for public uses; and that, for many years, a large strip of batture, between the river landing and North Boulevard and Front streets, has not been required for any public use; but, on the contrary, the defendant lias continuously, for a period of five years, rented said property to private parties, and has been deriving a revenue therefrom.

They claim $6000 accrued revenues, and $1000 per annum, accruing revenues. They join the lessees as defendants, and ask judgment against them in solido.

There is in the records an exhibit from the official map of the city, showing the extent of batture and location of the L., N. O. and T. R. R., west of square No. 1 of that part of the city of Baton Rouge, known as Leonard town, certified by the parish surveyor.

The track of this railroad traverses the vacant space between square No. 1 and the water’s edge, denominated by the plaintiffs as batture, in a somewhat diagonal direction; so that, at the point of its intersection of North Boulevard street, it is one hundred and thirtyffour feet from the latter and fifty feet from the former; while, at the point of its intersection with Convention street, it is only one hundred feet from the water’s edge and eighty feet from the square.

The vacant space thus traversed by the railroad is on the map denominated Front street.

It is this property that plaintiffs claim to be exempt from public use.

This suit appears to have been brought under the provisions of the Revised Statutes of 1870, see. 318, and which reads as follows, viz: Whenever the riparian owner of-any property in the incorporated towns or cities of this State is entitled to the right of accretion, and batture lias been formed in front of his land more than is necessary for public use, which the corporation withholds from him, he shall have the right to institute suit against the corporation for so much of the batture as may not be necessary for public use; and, if it be determined by the court, that any portion of it be not necessary for public use, it shall decree that the owner is entitled to the property, and shall compel the corporation to permit him to enjoy the use and the ownership of such portion of it.”

In order that plaintiffs be entitled to recover, in our opinion, the following conditions must concur :

1st. The evidence must disclose that they are the “ riparian own - ners” of the property in dispute.

2d. That there has formed an accretion or batture in front of their land more than is necessary for public use.

3d. That the defendant city withholds this accretion, or batture, from them.

In answer defendant claims possession, since 1810, of all that portion of ground, above described as being traversed by the railroad track, and that the map, or plan referred to by plaintiffs, shows plainly that the land claimed by them was dedicated to public use by '(heir ancestor, from whom they claim to derive title.

The city also urges that said dedication having been made prior to the 27th of October, 1810, when President Madison ordered Gov. Claiborne to take possession of Western Florida, wherein the town of Baton Rouge was then situated, the city is fully protected in the enjoyment of all the rights of use, ana jproperty therein, as same existed under the laws of Spain, to which government that territory belonged at the time, and that under said laws the river bank in front of Baton Rouge, and particularly that part of it in front of Leonard town, belonged to the defendant.

The city contends that her right to said vacant space was recognized by France in the treaty of Ildefonzo, in 1800, whereby Spain conveyed the province of Louisiana to that republic; and again in the treaty between France and the United States, in 1803, whereby same was ceded to the latter; and that judgment in plaintiffs’ favor would be in violation thereof.

Defendant expressly denies that there is any increase in alluvion, in front of that portion of the town divided into lots by Gilbert Leonard, since said division was made; and avers that the works erected by the Mississippi Valley Railway Company prevent the inundation of Front street, and the lots fronting thereon, and theretofore occurring.

The city admits that, in the exercise of her corporate powers, and to provide a revenue, lessen the burden of taxation, and to increase her facilities of trade in the article of fuel, which is one of prime necessity, she permitted a landing for coal in front of said Leonard town, where boats and barges are moored, and that for this privilege she has charged an annual rent.

She pleads in bar of plaintiffs’ right of action, the prescription of ten, twenty and thirty years, and prays judgment sustaining same, and decreeing the city entitled to the o%onership, use and possession of the property in controversy.

The word “ batture” has a precise legal signification: Vide Bouvier’s Law Dictionary, verbo, batture : “An elevation of the bed of a river, under the surface of the water; but is sometimes used to signify tlie same elevation when it has risen above the surface. The term “battures ” is applied principally to certain portions of the bed of the Mississippi river, which are left dry when the water is low, and are covered again, either in whole, or in part, by the annual swells.” 33 Ann. 548, Hollingsworth vs. Cliaffe.

Abbott’s Law Dictionary is the same.

In 6 O. S. 216, Morgan vs. Livingstone, the rights of riparian owners to batture formations on their river front, was thoroughly examined by Judge Martin, and from which the foregoing definitions were extracted.

The bank of a river is that space the water covers when the river is highest in any season of the year. The banks are not sold; they pass rather as an accessory of the contiguous land when sold, and the property of the banks belongs to those whose fields are contiguous. They must be the property of the riparian owners, without being included, or mentioned in their grants; for if they were only when included, (here would be no use for the provision of the law.

“ If,” says the learned judge, “therefore, when the sovereign grants land contiguous to the river, without mentioning the bank, it passes, it must do so as an accessory. If the bank passes as an accessory in the grant of the sovereign, it must also in the deeds of private persons.”

But defendant contends that the city of Baton Rouge occupies an exceptional position, and her counsel cite in their brief several paragraphs from the Partidas, to show that under the laws of Spain, prevailing at tlie date of the treaty of Ildefonso, when the province of Louisiana was ceded to France, the alluvion of said deposits on the banks of rivers ” belonged to the commons of cities and towns that were incorporated.'

In the opinion above quoted, (p. 236), the court said on this question : “ Under the Spanish government no town or city seems to have been erected by legal authority; that of New Orleans was the only one that existed.

“ It is true that in it the owners of the lots nearest the river have no part of the bank as accessory- thereto. These, lots are not charged with any of the burdens attending- rural riparious estates; the levee, roads and streets were made and kept in repair at the joint expense of every lot in the city. The farthest from the water contributing as much thereto as the nearest. No riparian duties are imposed on a lot in New Orleans, either by the law, or any clause in its grant.

Not so with regard to rural estates-; the law and a clause in the original grant burden those contiguous to the river with the confection and repair of roads, ditches, bridges and levees.”

In 18 La. 123, Municipality No. 2 vs. Orleans Cotton Press, this question was exhaustively considered in a very elaborate opinion. The Court said : Cities may acquire jwre aUwvionis, but it must be as owner of the front, or as riparian proprietor; for the alluvion is but an accessory to the principal estate or land.”

Again : The mere act of incorporation of the city in 1805, changing the name of this property from rural? to urban, neither made the city a front proprietor, so as to acquire jure alhmonis, or deprive the front lots of the right to such accretion.”

Again : The public, through the agency of the corporation, has the sole use of the levee and the bank of the river.”

In 10 Ann. 55, Kennedy vs. Municipality, the Court said: “ The next point made by defendants, namely, that the batture is loeuspublieus, and belongs to the city by destination, is a renewal of the pretensions set forth by the city in the case just quoted, of Municipality No. 2 vs. Orleans Cotton Press, and which were overruled after the fullest argument, and the most mature consideration.” 18 La. 237.

This question was thoroughly considered in 10 Peters, 709, New Orleans vs. United States; 6 Peters, 431, the city of Cincinnati vs. the Lessee of White; and in 6 Peters, 490, Barclay vs. Howells, Lessee.

In the opinion in the first case the history of Louisiana is traced from the 26th of September, 1712, when the King of France granted a charter of right to Crozat, and whereby the laws, edicts and ordinances of the-.realm, and the custom of Paris, were extended thereto; and the lands, coasts, harbors and islands were granted to him. In that case the principles above quoted were recognized and applied.

We conclude that the claim of ownership set up by defendant is not well founded.

II.

This brings us to the consideration of the pleas of prescription urged in behalf of the city.

In 10 Ann. 54, Kennedy vs. Municipality, the Court said: “As to the claim by prescription, it results very clearly from the authorities above invoked that the possession of the loeus in quo by the city, was a possession simply for the purpose of administration, not at all inconsistent with the right of ownership in the riparian proprietor, and destined, in its nature, to terminate upon the happening of a certain contingency. Such a possession cannot be pleaded against the riparian proprietor, as the basis of an adverse title in the city. This suit is very different from a petitory action.'’’ 11 Ann. 148, Remy vs. Municipality; 11 Ann. 788, Gaiennie vs. Municipality.

The plea must be overruled.

III.

This brings us to the consideration of the question of dedication to public use of the property in question.

Prom the map to be found in the record it appears that the space between the lots Nos. 1, 2, 8, 4, 5, in square No. 1, in that part of the city of Baton Rouge designated thereon as Leonard town, and the river is about one hundred and eighty feet in depth. That, in this space, is laid out and in use a street called Front street, of the mien width of fifty -three and one-third feet, and between it and the river the track of the Mississippi Valley Railroad is constructed. The front of Leonard town, from Convention to North Boulevard street, is 320 feet, and the batture is used by Wood, Widney & Co., as a coal-yard and coal-chute. The railroad track is on batture. The chute rests on trestles, and is used to load coal on the cars. The locomotive and machinery to raise the coal is on a barge in the river.

The judge, in his opinion, says : “ The witnesses agree that if the embankment or breakwater, made by the railroad company, was removed, the whole front of Leonard town square would be under during high water in the river. The whole of the front of the square has been filled up by the railroad company.”

In 6 Peters, 502, the Court said of the city of Pittsburg: “ From the plan of the town it does not appear that any artificial boundary, as the southern limit of Water street, was laid down. The name of the street is given, and its northern boundary, but the space to the south of it is left open to the river. All of the streets leading to the south terminate at Water street, and no indication is given on the plat * * that it did not extend to the river. * * * * And it appearing that the commerce of the town required the extension of the street to the river, and there being no statement, or line marked on the plat of the town opposed to it; and, as the public, for thirty years or more, in some parts of the town, had used this street; and that property had been bought and sold in reference, to it, in this form; it was held to be sufficient dedication to public use.”

In the record we find an ordinance of the city of Baton Rouge, of date May 22,1847, in which it is declared “ that from and after the 1st day of September next the steamboat landing will be extended to the. lower line of Convention street.”

We also And another ordinance of date April 25, 1860, which declares “that the space comprised between the lower line of Convention street and the lower line of North Boulevard street, shall be exclusively reserved for all landings noi otherwise provided for.”

After being set apart for public use, and enjoyed as such, and private and individual rights acquired with reference to it, the law considers it in the nature of an estoppel in pais which precludes the original owner from denying such dedication. 2 Dillon on Corporations, p. 598.

While a mere survey of land by the owner into lots defining streets, squares, etc., will not, without a sale, amount to a dedication, yet a sale of lots with reference to such plat, when bounded by streets, will amount to an immediate and irrevocable dedication of the latter, binding on both the vendor and vendee. 2 Dillon Corp., sec. 503,

In 10 Ann. 81, Saulet vs. New Orleans, the Court said : “ To support a dedication to public use, it must appear that the property has been so used with the assent of the owner, or else it must appear unequivocally by some plan or writing, that the owner had made a dedication, to violate which would involve a breaeli of good faith.”

In 24 Ann. 194, Arrowsmith vs. New Orleans, the Court said : “It is manifest from the evidence in the record that plaintiff sold the greater-part of the lots in 1835, and his acts of sale refer to the plan, and have been located according to the conditions imposed by the City Council. He has acquiesced in this respect for thirty years with full knowledge of the facts and by adopting the changed location; by the act of selling lots in accordance with it, we think the purpose to dedicate to public use may be fairly inferred.”

In 6 Peters, 431, Cincinnati vs. White, the following principles were settled:

1. That it is not essential to a dedication that the legal title should pass.

2. Nor that there should be any grantee of the use to take the fee.

3. Nor that a deed or writing is necessary to a valid dedication.

Upon the foregoing compilation of authority, as applied to the evidence, we have no hesitancy in saying that the dedication of the space in controversy is fully made out.

It is unnecessary for the purposes of this enquiry for us to adjudge plaintiffs’ title, because the public has the use irrespective of the question as to where the fee resides. 2 Dillon Corp., p. 524.

IV.

The question left for decision is whether — conceding for the argument that plaintiffs are riparian proprietors ” — has the defendant city in her possession and under her administration more of the accretion or batture than is necessary for public use.

We are of the opinion that the plaintiffs have not, in this respect, made out a case. The weight of testimony is to the effect “ that there is no more batture in front of the square included between Convention street and North Boulevard now than there was many years ago.” The level of the bank was raised by the railway company. Its present improved condition is not referable to accretion.

The plaintiffs complain that the city has for several years leased this front for purposes of a coal yard, and have made of it a coaling station ; and that this is not a public use.” Their counsel cites in support of that view 5 Ann. 36; 6 Ann. 450; 12 Ann. 657; but we do not regard this case as falling within the provisions of either.

The defendant has not built, nor permitted to be constructed, upon the space in controversy, any permanent structure. The city claims that she only permitted and allowed certain constructions and embankments to be made from the bed or sloping bank of the river, between high and low water, in the interest of the commercial prosperity of the city, and to meet the actual wants of the people. It appears that if those artificial embankments had not been made, this property would not have been susceptible of occupancy. It also appears that wharf-age dues are now, and have been, collected from steamboats and other crafts that land in front of this space.

This right was well recognized under the laws of Prance and Spain. 10 Peters, 727, New Orleans vs. United States.

In her answer, the city claims, u that in the exercise of her corporate powers, and to provide a revenue for the city, lessen the burden of taxation, and increase the facilities of trade in the article of fuel— which is of prime necessity — she has permitted a landing for coal in front of Leonardtown square, where boats and barges are moored.”

Such rights and privileges' as the city claims were well recognized by the civilians, as well as by common law writers, and their allowance is specially sanctioned by our Code. R. C. C. 868.

The judgment of the lower court is therefore affirmed.

On Rehearing.

Eennek, J.

We granted the rehearing in this case, not because we had discovered any error in our former decision, but because the cast appellant complained that the author of the first opinion had not been a member of the Court, at the time when the cause was submitted, and had not heard the oral arguments.

We have, however, attentively considered the arguments and authorities which have been advanced on the new hearing.

We remain fully convinced that the evidence in the case establishes a valid dedication to public use of the locus in controversy under the principles established by the following authorities: Carrollton vs. Muny, 19 La. 71; Carrollton vs. Jonas, 7 Ann. 233; Soulet vs. New Orleans, 10 Ann. 81; Arrowsmith vs. New Orleans, 24 Ann. 194; Cincinnati vs. White, 6 Peters, 431; New Orleans vs. U. S., 10 Peters, 662; 2 Dillon Mun. Corp., §§ 499, 500.

2d. Plaintiffs have failed to bring their case within the purview of sec. 318, R. S., because it is not shown that bgtture has been formed in front of the land more than is necessary for public use.”

The context shows that the statute refers to batture formed by accretion. In this case, it fully appears that the land in controversy has been reclaimed by artificial works erected under the authority of the city; and it is, moreover, necessary for public purposes, and is used for purposes of a public character, though through the medium of private parties, who act under the city’s authority only temporarily granted.

The uses are as a landing, wharf and storing-place for coal for the purpose of facilitating the reception and distribution of fuel to the inhabitants at reasonable prices which are regulated, to a certain extent, in the ordinance.

The public character of such uses is not destroyed by the fact that they are temporarily farmed out to particular individuals. Cities ex-ereise, without question, the right of designating particular portions of their wharves and landings for the use of certain lines of vessels, or for the reception of certain kinds of commodities, and the power here exercised is of that general character. If the parties benefited arc willing to pay for such privileges, plaintiffs have no cause to complain-

3d. The right claimed by plaintiffs to recover these revenues, has no support in the authority quoted from Dillon, who merely says: the pioprietor * * retains his exclusive right in the soil for every purpose of use or profit, not inconsistent with the public easement.”

This has no application to a case like the present, where the use and profit result from a direct exercise of the public easement itself by the public authority in which it is vested.

It is, therefore, ordered that our former decree remain undisturbed.


author: Bermudez, C. J.

text:
    No. 9905.
    A. J. Forstall vs. E. L. Larche.—R. N. Lea, Intervenor.
    The amount in dispute is the highest sum for whioli the appellate court can render judgment under the allegations and prayer of the petition.
    A party who makes a transfer in writing of live stock, and who does not prove that the contract, apparently a sale, was designed to be one of suretyship, and that he received no consideration, cannot recover the stock in question.
    An intervenor who claims ownership of such stock, as having been given in payment to him of a judgment against the defendant, cannot recover where it, appears that the debt for which the judgment had been obtained had no existence, having been previously extinguished by payment, and where the surrounding circumstances tend to show that the proceeding is the result of a combination between the defendant and the intervenor (plaintiff in the suit) to frustrate plaintiff from his rights.
    APPEAL from the Eighth District Court, Parish of East Carroll. Deloney, J.

      J. IL Keimedy for Plaintiff and Appellee.

      F. F. Montgomery for Intervenor and Appellant.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Bermudez, C. J.

The appellee moves to dismiss this appeal on the ground of want of jurisdiction in this Court over the case.

The suit is for the recovery of live stock, valued at $1750, and for ' the use of them, at $35 for each, per annum, from the institution of the suit to the day of delivery.

There was judgment for the plaintiff, recognizing him as the owner of the stock, and in default of delivery for one hundred dollars for each head.

The judgment further allowed plaintiff thirty dollars per amiwm for the use of each mule and horse from the time of sequestration to final delivery — that is, for $280 at least.

The amount allowed by the judgment, added to the value of the stock ($1750), formed a total, at the .rendition of the judgment, of $2030. It could have allowed more.

Were this judgment affirmed on appeal, the plaintiff would be entitled to recover at least $2270.

The judgment appealed from was certainly warranted by the petition, which claimed the ownership of the live stock, or their value, and besides, the use of the same until delivery.

Wc consider that the amount in dispute is the highest sum for which judgment can be rendered, under the allegations and prayer of the petition. Crescent City Co. vs. Larrieux, 30 Ann. 798; Gay vs. Railway Co., 31 Ann. 274.

The motion to dismiss is denied.'

On the Merits.

The object of this suit has already been stated.

The defendant denied having ever sold the mules, etc., to the plaintiff, and says that, though the act of transfer to plaintiff appears to be a sale, it was in reality intended only to serve as security, and that he received no consideration.

An intervention was filed, claiming the ownership of the stock sequestered, and in default a privilege on the same, to secure payment of an amount alleged to be due the intervenor, as holder of rent notes, for which he had already obtained judgment.

From a judgment in favor of plaintiff and rejecting the intervention, both the defendant and the intervenor have appealed.

The plaintiff has proved, by written evidence, the sale and transfer to him, for $1750, acknowledged to have been received and by parol, the delivery to him, through an agent, of the mules and horses in question, by the defendant; but the latter has failed to establish that the contract was not a sale but a suretyship, and that he received no consideration ; a defense which is the less founded, as it is self-destructive.

The evidence establishes, with as much precision as can be expected in similar cases, that the judgment on which the intervenor relies, as obtained against the defendant, on rent notes acquired from the landlady, and in satisfaction or payment of which the stock in question is said to have been given, was obtained by default, the defendant making no resistance, or the shadow of a claim, which had ceased to have any existence against the defendant.

In this regard, it appears that the intervenor. in furtherance of some understanding with the defendant, acquired from the landlord the two notes in question, settling for the'same in a draft on his correspondents, but that previous to this acquisition of the notes and issue of the draft, the intervenor had obtained cotton from the defendant for a value far exceeding the amount of the notes, and that said cotton had been turned over to him for the purpose of injuring the plaintiff some way or other.

The intervenor claims that the mules and horses were given to him by the defendant in payment, and that the judgment in his favor was credited with their value.

The record does not show that credit, but shows that the intervenor, plaintiff in the case, afterwards issued execution against the defendant for the whole amount, just as though the pretended giving in payment had not taken place.

We remain irresistibly impressed that the rent notes were acquired by the intervenor from the landlady with money realized by the sale of cotton transferred to him by the defendant for some evil purpose, and that the judgment on which he relies has no foundation.

We believe further, that the intervenor, who appears to have been on terms of intimacy with the defendant, was well acquainted with his business, his operations and even his designs, and was well cognizant of the fact of the transfer of the stock by defendant to the plaintiff.

We have examined the bills of exception taken by the defendant and the intervenor to various rulings of the lower court, but find that, under the circumstances, the district judge did not err in deciding as he did. In themselves, they are of no force. ■ -

We deem it unnecessary to enter into au explanation of the business ' relations between plaintiff and defendant, which were those of factor and plantin', and remain satisfied on the questions of fact between the parties litigant, that the district court has done them justice.

Judgment affirmed.


author: Fenner, J.

text:
    No. 9879.
    Succession of Drauzin Triche, on Opposition to Final Account of Administrator.
    When in a contested provisional account, the amount and rank of various charges and privileged claims have been settled by final decrees of court, the same claims cannot be again contested when presented in a final account of distribution.
    The administrator of an insolvent succession, left in possession of a fractional part of a sugar plantation with a growing crop on it, which has beon sold to a person who fails to comply with his bid, and against whom he has taken proceedings for a sale a la folie enehere, is sustained, under the particular circumstances of this case, in making an arrangement with the purchaser of the rest of the plantation, including the stock, implements and sugar-house, by which the latter takes charge for his own account of the crop and property under the obligations to pay the taxes, keep the land, fences, ditches and improvements in order and repair, and to so plant and cultivate the land as to keep it, at all times, as nearly as possible in the condition in which it was at date of sale, aud in readiness to respond to a decree for a sale a la folie enehere.

    Under the circumstances of the case, the administrator will not be held liable for the crop or for the rents and revenues.
    PPEAL from the Twentieth District Court, Parish of Lafourche. Beattie, J.

      Olay Knobloeh, for the Administrator, Appellee:

      T. D. Moore and T. A. Badeaux, John Ban/ and J. 8. Billiu, for Opponents and Appellants.
   The opinion of the Court was delivered by

Fenner, J.

Several of the matters involved in the present oppositions were presented to and determined by us, under oppositions to the provisional account of the administrator, in cause No. 8458 of our docket, reported by syllabus only, in 34 Ann. 1148. We find that the items of the present account, Nos. ], 2, 3, 4, 5 and 6, which are now opposed, were finally settled by the decrees in that case, by'which the opponents here are bound, and, as to them, the plea of res adjudicata was properly sustained.

II.

Mrs. Medus’opposition to the distribution of the gross proceeds of nine-tenths of Laurel Grove Flantation, as between herself and Mrs. Trosclair, has received our careful attention, but we are unable to perceive the slightest merit in it. She is simply a concurrent mortgagee with Mrs. Trosclair, and the administrator lias distributed the fund to them iu the exact proportion of their respective claims.

hi.

Lapene & Ferre’s opposition totlie eighth item of the account scorns to be utterly inconsequential, even if not concluded by the plea of res judicata. In the provisional account the amount of Lapene’s bid for the part of Orange Grove Plantation was fixed at $10,731, and, in our decree thereon, he was ordered to pay into the administrator’s hands the sum of $8060 as having a preference on the x>roceeds over the mortgage notes held by him. The administrator, accex>ting these, amounts-as fixed by that, decree, now reports the difference of $2673 a-s the amount retained by Lapéne. Lapéne & Ferré, who now claim ownership of the mortgage note, then held by Lapene, claim that this is error; that the amount of Lapene’s bid was not $10,733, but only $10,230/and, therefore, that the amount retained on account of said bid was not $2671, but only $2170.

Lapene (by whose acts, in the matter of these notes, we hold his firm of Lapene & Ferró fully bound), was an opponent to the provisional account, and should have had this error of figures then corrected. But, were it otherwise, inasmuch as under this final account of an insolvent succession, Lapéne & Ferré, receive nothing under either hypothesis, we see no harm to them from the error, and no benefit they would derive from its correction.

IV.

The remaining and most serious grounds of opposition arc the claims that the administrator should be charged in this account with the net proceeds of the crop of 3875, on the part of Orange Grove sold to Lapene, and with the rents and revenues of said |>ortion, from 1875 to March, 1883, when Lapene was finally sent into possession.

The facts are as follows:

The succession was insolvent. A sale for cash to pay creditors was pro voiced, which took [dace on September 4th, 3875. Orange Grove was a sugar plantation, with a growing crop upon it. In compliance with Art. 132 of the Constitution of 1868, it was divided into lots for purposes of sale. Lapéne became the adjudieatee of several lots, bul T. J. Badeaux became the purchaser of the larger portion of the plantation, together with the sugar-house, all the mules, carts, wagons farming implements, etc. Badeaux complied with his bid and wa. sent into possession. Lax>dne declined to comply with his bid, claim ing that he was entitled to retain the whole amount thereof, on accoun of the mortgage notes of Lapéne & Ferré held by him.

Thereupon, the administrator took a rule on Lapéne to show caus why the lots should not be resold a la folie enohére, and Lapéne toolc a contrary rule upon the administrator to show cause why the adjudication to him should not be completed, and why he should not be placed in possession.

The situation was a singular one. By kapene’s action the administrator found himself left in possession of fractional and disconnected lots of a sugar plantation, on which there was a growing crop, while the remainder of the plantation, including the sugar-house and all the stock and farming implements, had been sold and delivered to Badeaux.

The pending proceeding for a resale á la folie enehere, rendered the possession of the administrator exceedingly precarious, and also imposed upon him the duty of keeping the property as nearly as possible in the condition in whieh it was at the date of the first sale.

There was no apparent means of taking off the share of the growing crops except by use of the stock, wagons, implements, etc., and the sugar house of Badeaux; and the latter refused to make a contract for taking off and manufacturing the crop for account of the administrator, for various cogent reasons assigned by him, amongst which were the following: that the lines between the various lots had never been actually run and could not then be run without injury to the crop; that the expense of grinding Lapene’s cane separately from his own would be too large ; that, as he had but one cistern, the molasses could not be separated; that, in case of a freeze, he would wish to grind his owu cane first and might thereby lose the other and incur liability, and tbe like.

In the meantime, the administrator was confronted with the problem of what he was to do with the property thereafter.

The evidence satisfies us that the land could not have been rented under such circumstances, by reason of the necessary precarious)) es.s of the possession and for want of a sugar house for taking off the crop. All the testimony as to the rental value of the land is based on the hypothesis that there was a sugar house upon it; and no witness testifies that the land alone, without stock, implements or sugar house, could have been rented, even leaviug out of view the impossibility of fixing auy term for a lease.

The administrator, therefore, concluded, under the circumstances, that the best thing to do was to turn the property over to Badeaux, to take charge of it, take off the crop and continue the cultivation, under the obligations of paying the taxes, keeping up and repairing the ditches, fences and improvements, and so planting and cultivating the land as to keep the property, at all times, as nearly as possible in the situation in which it was at the date of the sale.

I-Ie made an agreement, to this effect with Badeaux, who has faithfully carried it out; and though the litigation was prolonged beyond all reasonable expectation,' this does not appear to be attributable to the fault of the administrator, and we think the arrangement made by him was prudent and reasonable, and that the responsibility now sought to be cast upon him is not sustained in law or equity. Succession of Clairteaux, 35 Ann. 1178.

Judgment affirmed.


text:
    No. 9920.
    Fusz & Backer vs. Tracer & Noble.
    A surety on a release bond in an attachment proceeding against a resident, ia concluded by the judgment against the defendant, if regularly rendered.
    Such surety, on a rule to hold him liable fot such judgment after return of an unsatisfied execution, has no right to set up defenses which do not avail the judgment itself.
    A ruling refusing a continuance to procure an absent witness to establish other defenses and striking out of the answer to the rule impertinent issues, is correct and will not be disturbed.
    APPEAL from the Ninth District Court, Parish of Concordia. Young, J.

      Flam <ft Luce and Steele Garrett for Plaintiffs and Appellees.

      ■J. L. Fagg and L. F. Mason for Defendants and Appellants.
   The opinion of the Court was delivered by

Bermudez, C. J.

The question presented in this case, involves the right of a surety on a release bond in attachment proceeding against residents to set up certain defenses.

It appears that after judgment recognizing the claim .of plaintiff's and its being secured by a privilege on the property attached, the judgment becoming executory, execution was issued, but was returned nulla bona.

Thereupon a rule was taken on the surety on the release bond furnished by the defendants, who pleaded: that the affidavit was insufficient and false; that the bond was insufficient in amount; that the property seized was not, the property of the defendants, but of one of them ; that the hond was signed on the representation and assurance that a legal defense would he made, which was not set up and that the plaintiffs were parties to the fraud practiced.

When the case was called, the defendant in rule moved for a continuance to procure the testimony of an absent witness, and after the plaintiffs had closed and the defendant was about to offer evidence, the plaintiffs moved to strike out of the answer to the rule all averments raising issues as to the right of attachment and the validity of same, which could only be made before judgment and cannot be urged by the surety.

The district judge refused the continuance and sustained the motion to strike out, rendering judgment against the surety, who appeals.

Counsel have argued, that the only questions presented for solution in this Court, involve only the correctness of these rulings, and that the judgment on the merits was correct; provided, the rulings complained of were so.

The rule on the surety is taken under the terms of article C. P. 259, § 3, relative to the bonding of property attached.

Under the first paragraph of that article the obligation of the surety is, that he w ill satisfy such judgment, to the value of the property attached, as may be rendered against the defendant in the suit pending.

The preponderance of the jurisprudence on the rights and obligations of sureties on release bonds in attachment proceedings against residents is to the effect that such sureties, when ruled to be held liable, cannot be heard to set up any defense which the defendant himself could not raise — and that where the judgment rendered on the merits condemns him, the surety is concluded by it, even if it were true, that it is not justified by the evidence; provided, it was regularly rendered, has become final and executory and remains unsatisfied and the signature of the surety to the bond is genuine.

If the attachment in this case could have been dissolved, for the reasons now advanced by the surety, they ought to have been urged by the defendants before or on the trial on the merits.

By joining him in the release bond the surety unites his destinies with him and places himself entirely in his hands and, as it were, at his mercy, as far at least as the plaintiff is concerned.

The last expression of the judicial mind on this subject is to be found in the case of McCloskey et al. vs. Wingfield et al. 32 Ann. 38, (43) in which the court (Spencer, J.,) distinctly held: that the judgment against the defendant in attachment concludes the 'surety whose obligation is to satisfy the judgment against the principal, the validity of rvhich the surety cannot dispute.

The ruling of the present Court in Baker vs. Frellsen, 32 Ann. 829, can afford the appellant no comfort. It verifies what we have premised in this opinion, namely: that a surety is entitled to see the case tried according to law and that a judgment rendered at chambers, out of term and on the confession of the principal on the bond, defendant in the suit, though it would hind the principal, could not affect the surety.

We therefore conclude that, as the defenses set up by the defendant in rule, the surety, were unauthorized by law, the lower court properly refused the continuance and sustained the motion to strike out.

The plaintiffs answeiiug, pray for damages.

We think the appeal is frivolous and that damages ought to be allowed.

It.is, therefore, ordered and decreed that the judgment appealed from be affirmed, and it is further ordered and adjudged that the plaintiffs recover from the defendant in rule, Isaac Friedler, the sum of fifty dollars, as damages for a frivolous appeal and costs in both courts.


text:
    No. 9900.
    Pfarr & Kullman et al. vs. Stephen Belmont.
    A. nuncupative will under private signature need not be shown to have been dictated by the testator, when written out of the presence of the witnesses.
    The affirmative answer of a testator to a question: Whether the paper contains his last will ? amounts to the presentation prescribed by law. The presentation need not be manual, or more formally made.
    Witnesses who declare that they saw the testator sign the paper purporting to be Ms will, and that they themselves signed it; and who further declare that they recognize their signatures to the same instrument, virtually testify that they recognize the signature of the testator to it.
    The law which provides for the drawing up of a procos verbal of probate of a will, is not man* datory, but merely directory. Apparent deficiency in its recitals cannot have the effect to vitiate the piobate, but may be supplied by legal presumption or by additional proof in a suit contesting the will.
    The appointment of a dative executor on the filing of a petition for the same and before any advertisement and expiration of the delay for opposition, is unwarranted. It can be made only after publication and in the absence of opposition.
    An order of sale obtained by a dative executor thus appointed, is procured by one having no authority to ask ib and m ust be rescinded.
    A plaintiff must make his case legally certain. It is not sufficient to make it morally probable.
    The Court does not pass on the capacity of plaintiffs to sue at the present stage for recovery of debts due the succession.
    The contingent appointment of a dative executor, on the condition that public notices shall be given and that it be not opposed, is of no avail, where, after the advertisements have been published, though the application has not been opposed, the appointment is not confirmed by a subsequent formal decree conferring it on the petitioner.

      APPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Jiurgess. ,T.

      G. IT. Buckner, O. D. Favrot and If. A. Gross for Plaintiffs and Appellants.

      T. 13. llupree and Head & Goodale for Defendant and Appellee.
   The opinion of the Court was delivered by

Bermudez, C. J.

'Pile plaintiffs sue as legal heirs of Elizabeth Pfarr, Widow Bahr.

In that capacity they ask the nullity of what is claimed to be her last will, and, eventually, the nullity of the appointment of a dative executor.

They also urge the illegality of an order of sale to pay debts and an indebtedness of the defendant to the succession.

Concluding, they pray that he be ordered to render an account and held liable for his indebtedness and for amounts and effects not inventoried by him.

The defendant maintains the validity of the will and its probate; that of his appointment and of the order of sale, and denies any liability.

The court rejected the demand for the nullity of the will, of the probate proceedings, of the appointment of the succession representative, of the order of sale dissolving an injunction issued to arrest the sale, and non-suits the plaintiffs as to other claims.

Prom this judgment the plaintiffs appeal. The defendant answers, praying for damages for a frivolous appeal.

1.

The plaintiffs charge that the will, which is in the nuncupative form, under private signature, is null, because it was not dictated and presented by the testatrix as the law requires.

The evidence satisfies us that the document was written out of the presence of the witnesses, under the direction of the testatrix, by her counsel; that after the five witnesses required by law had assembled in her room, she handed the paper to one of them who inquired of her what it was, and that she answered that it was her last will; that this witness then read it to her in the presence of the other witnesses, and that, after the reading, being asked whether what had been read was her last will, she answered in the affirmative; that she then signed the will, and after her the five witnesses.

There is no evidence that the will was dictated by the testatrix. None was necessary, as it was written out of tlie presence of the witnesses.

The ruling to which counsel for plaintiffs refer in Bordelon vs. Baron, 11 Ann. 678, to the contrary, requiring proof of the dictation by the testator, whether the will he made in the presence or in the absence of the witnesses, has been formally overruled in several instances. Pendergast case, 16 Ann. 219; Succession of Marigny, Ib. 267; Wood vs. Roane, 35 Ann. 865.

The same may be now said of the ruling in Caleb vs. Douglas, 16 Ann. 327, in so far as it may be considered as requiring dictation, when the will is written out of the presence of the witnesses, and as holding that the affirmative answer of a testator, to the question whether the document contains his will, does not constitute the presentation required by law.

In Wood vs. Roane, 35 Ann. 865, and Bourke vs. Wilson, 38 Ann. 328, this Court has distinctly ruled, not only that the presentation need not be manual, but that the acknowledgment of the testator that the paper contains his last will, implies the presentation provided by law, even when that acknowledgment is in response to a question.

The charge that the testatrix was mentally disabled is not established, while the reverse is shown by unquestionable testimony.

There was no justification to make the other charge that the will was obtained by undue influence.

II.

The plaintiffs further complain that the probate was ex parte ; that the decree was made in chambers on the affidavit of witnesses; that the evidence is insufficient; that the will was not read by the judge to the witnesses; that the proees verbal of probate is irregular and void.

(«) The law does not require, absolutely, that the proceeding to probate a will be contradictorily carried on. The provision is merely directory. The fact is that generally the proceeding takes place ex pcvrte.

The Code directs, it is true, that notice be given to the heirs present, but it does not say that, unless such notice be given, the probate shall not take place. The reason for this is quite plain. There may be urgency for the probate of the will that the executor be at once recognized and placed in possession of the estate for its protection. Besides, the heirs may not be easily reached by the process of the court.

In any event, where the proceeding is carried on ex parte and the will is ordered to be executed, by its very nature the decree concludes no one, and the will, if objectionable, can be attacked subsequently by any party interested and its nullity demanded and obtained for a proper cause.

In the present instance, it does not, however, appear that the heirs of the deceased were present and could have been notified. The law does not exact impossibilities.

(&) It is not essential that the testimony of witnesses called to prove a will be taken down separately. It is sufficient that the substance of their evidence, where it is concordant, be reduced to writing and be sworn to by them. This testimony is generally heard by the judge directly, but it sometimes happens that circumstances occur requiring that it be procured under commission as where the witnesses reside beyond the jurisdiction of'the court, or are, for some other cause, unable to attend;

On the question of the sufficiency of the proof adduced', we are satisfied that the witnesses have established facts showing that’the will was presented by the testatrix; that it was read by one of them to her; that it was sigued by her and them; that they recognize and identify the testament, and that they recognize their signatures and that of the testatrix.

The objection cannot hold that it is not shown that the witnesses have recognized the signature of Mrs. Bahr to the document purporting to be her last will.

As well in the statement at foot of that instrument, as in the affidavit containing the declarations which they made shortly afterwards, on the occasion of the probate of the will, as in the testimony which they subsequently gave during the trial of this controversy, the witnesses have declared that they recognize their signatures to the document.

If they saw Mrs. Bahr sign the paper to which they have affixed their own signatures, and if they recognize their signatures to it, they evidently thereby identify the instrument as that signed by Mrs. Bahr and so recognize her signature thereto.

The charge is not that Mrs. Bahr did not sign, but that it is not proved that the witnesses recognized her signature.

Had we any doubt on this important fact, we would certainly leave a door open for new proof.

(e) In relation to the objection that it does not appear that the judge read the will to the witnesses, it suffices to say that the preces verbal recites that he read it iu an audible voice.

The presumption is that the judge did his duty and read the will to the witnesses and others, if any, present.

The law does not demand such reading to the witnesses as a condition sine qua non, for the fulfilment of that ceremony would be an impossibility in those cases, in which the testimony is procured under commission of witnesses residing beyond the jurisdiction of the court, or who are confined by infirmity to their quarters.

(d) The;proces verbal gives the name and surnames of the witnesses who testified, twTo in full and two with double initials, preceding the surnames.

The same witnesses who signed the affidavit so termed were heard on the trial, and their identity with those who signed the will is not contested. The law was substantially complied with.

(e) It is true that the jnoces verbal might have better been drawn up, under the provisions of Art. R. C. C. 1649 and C. P. 942; but because it was inartistically prepared, it does not follow that the probate, proceeding is a nullity, or that the will is affected by it.

III.

The next ground of complaint is, that the defendant was illegally appointed dative executor.

It appears that the district judge made the appointment on presentation of the petition for the same, contingent on public advertisement and of absence or dismissal of any opposition.

The law requires, as conditions precedent for the appointment of succession representatives, that due notices of the application be first given by advertisement in the public papers, and next that it be not opposed, and if opposed, that the opposition be dismissed.

In an early case which has since been followed, in which the court had appointed a dative executor, without compliance with those requirements, the then Supreme Court held the appointment to be null, saying that the notice of an application for the appointment of a dative executor must be given in all cases in the same manner as is prescribed for curators or administrators of estates. See case of Girod’s Heirs, 18 L. 394; see also Succession of Henderson, 2 R. 391; Succession of Talbert, 16 Ann. 231; 5 N. S. 506; Succession of Gusman, 35 Ann. 405. Those rulings are based on the texts of the law. R. C. C. 1107, 1045, 1115; 1107 C. P. 967, 971.

In relation to the oath taken and the bond furnished by the defendant, it suffices to say that, as the order appointing him is set aside, whatever was done in furtherance of it falls with it.

IV.

From the conclusion just reached, it follows that the petition presented for the sale to pay debts, emanating from' one who had no official character to provoke the sale and the order on it, were unauthorized and must be rescinded.

V.

Conceding that the plaintiffs have a right to represent the succession without having been put in possession of its assets, and to claim payments of debts due to it, (on which we express, however, no opinion) they have not adduced sufficient proof to recover of defendant in this action.

We think the district judge properly non-suited them.

Appellees’ prayer for damages is frivolous and cannot be allowed.

It is therefore adjudged and decreed that the judgment appealed from be affirmed, so far as it maintains the validity of the will of the deceased, and the sufficiency of the evidence to probate it, and non-suits the plaintiffs; but in other regards that it be and is reversed; and,

It is now ordered and adjudged that the order for the sale of the succession property be set aside, and the petition for same be dismissed, and that the injunction issued to prevent the sale be reinstated and perpetuated, the defendant and appellee to pay costs in both courts.

On Application por Rehearing.

The application charges that the judgment rendered is erroneous in this : that there is evidence in the record that the petition for appointment was followed by advertisements and that it was not opposed, and further, that the petitioner’s rights should at least be reserved.

It is true that the conditional or contingent order by which the defendant claims to have been appointed dative executor, was followed by notices in a newspaper, and that it does not appear that any opposition was made to the appointment solicited; but what is there to show that after the advertisements had been made and after the delay for opposing had elapsed without any opposition being filed, any order was rendered appointing the applicant dative executor1?

The fact is that such second order which is essentially a condition precedent for the qualification of the petitioner was never rendered.

The absence of such formal order forbids the petitioner, defendant herein, from claiming to be the dative executor of the will of the deceased. Succession of Picard, 83 Ann. 3137; Succession of Gusman, 35 Ann. 405-8.

It does not, however, follow that the petition for the appointment avails nothing to the applicant. That petition remains, though the order thereon, prematurely appointing the petitioner dative executor, has been annulled. It stands as a filed application, and the petitioner is entitled to further proceedings on it. The case must be viewed as one in which no appointment has as yet been made.

II.

We deem it unnecessary to answer specially the inquiry whether, had a sale taken place under the order of sale, it would not have been valid.

No sale has taken place, as the order of sale was arrested by injunction, as already said, the order falls for want of one qualified to formulate a demand for it.

Rehearing refused.


author: Watkins, J.

text:
    No. 9662.
    Heirs of William S. Pike vs. Heirs of Joseph C. Charrotte.
    Against an action for the resolution of a sale, based exclusively on the failure of the vendee to pay the last five of a series of seven instalments of the purchase price, and when the first two have been extinguished by voluntary remission by the heirs of the vendor to the heirs of the vendee, prescription commences its course on the day of the debtor’s default in payment of the last instalment that is covered by the suit.
    Edwards'vs. White, 34 Ann. 989, affirmed.
    APPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Burgess, J.
    F. L. Richardson for Plaintiffs and Appellants.

      O. D. Faurot and 1L A. Gross for Defendants and Appellees.
   The opinion of the Court was delivered by

Watkins, J.

This suit is prosecuted by the widow and heirs of William S. Pike against the heirs of Joseph C. Charrotte and wife, for the resolution of a sale of one undivided half interest in the Myrtle Grove plantation, made by W. S. Pike to Joseph C. Charrotte, on the 28th of February, 1871, for the price of $15,000, solely upon credit, payable in seven annual instalments, for which the purchaser executed his several notes and secured their payment by mortgage.

The act of sale and mortgage was duly registered in the book of conveyances and mortgages.

Suit was commenced January 13, 1884. Prior to that date plaintiffs remitted and surrendered to the tutor of the minor heirs of J. C. Cliarrotte and wife, the two notes first maturing on February 28, 1872 and 1873. The remainder of them were annexed to their petition, to evidence the non-payment of the purchase price, and therefor demand was made for the resolution of the sale.

The only defense is predicated upon a plea of ten years’ prescription.

I.

During the pendency of the suit in the lower court, certain judicial mortgage creditors of J. C. Cliarrotte intervened and resisted the resolution of the sale as being to their prejudice. They aver that there has been no administration of the debtor’s estate, and no judgment can be rendered against the minor heirs, who have no other representative than a tutor.

From an adverse judgment interveuors appealed to the Circuit Court, and it was affirmed.

The defendants bring their appeal here, and in argument counsel make like resistance.

It cannot be of avail to them. The decree of the Circuit Court forms res adjudicata as to the only creditors known other than plaintiffs; and defendants must rely upon their plea of prescription.

II.

There is no question of the capacity of the plaintiffs to maintain such an action, nor of the capacity of defendants to stand in judgment. All of the heirs of Pike are plaintiffs, and all of the heirs of Cliarrotte are defendants. 38 Ann. 583, Heirs of Castle vs. Floyd.

III.

The plea of prescription is urged upon the theory announced in the majority opinion of the Court in George vs. Knox, 23 Ann. 354.

But in the case of Edwards vs. White, 34 Ann. 990, this Court maintained as correct the views expressed in the dissenting opinion of Mr. Justice Wyly. In that case the Court say: “We must regard the present action as arising from and based exclusively on the breach of condition resulting from default in payment of the last instalment, and only prescribed by ten years from that date, which had not expired when this suit was brought.”

Applying the doctrine therein announced to this case, and it necessarily results that plaintiff’s action was not prescribed. The suit was filed and service made on tbe defendants within ten years after tin*, maturity of tbe third note of the series, on the 28th of February, 1874.

The evidence fully establishes the remission and surrender of tbe two notes maturing on the 28th of February, 1872 and 1873.

IV.

Question is made in regard to. tlie validity of the remission of tbe first two notes, because same was made to the tutor of the minors.

The Code recognizes volunta/ry remission as a mode of extinguishing an obligation. R. C. C. 2130.

The remission of a debt is tacit when tlie creditor voluntarily surrenders to his debtor the title which establishes the obligation. R. C. C. 2199.

The release or remission of a debt is presumed always to have been accepted by the debtor, and il cannot be revolted by the creditor.” R. C. C. 2201.

In Halstead vs. Noble, 1 Ann. 194, the Court said : The gratuitous remission of a debt is as valid as a release for a valuable consideration, and may be expressed or implied.”

In Lee vs. Ferguson, 5 Ann. 532, it was said : “ Tlie acceptance of a release of a debt is by law presumed.”

There was no other legal representative of the deceased than the tutor, at the time the remission aud surrender of the two notes was made to him. While we do not express any opinion as to whether such a remission could have been legally made to an administrator, we consider a remission made to the tutor as valid and effective.

Judgment affirmed.


text:
    No. 9780.
    C. A. A. Pironi vs. Julia Riley, Wife of E. J. DeHart.
    An action (the object of which is the nullity of certain judicial proceedings had in a succession, and the payment of a legacy), w:hen allotted to a division of the District Court for the parish of Orleans, other than that to which the succession proceedings had been previously allotted — can be properly transferred from the former to the latter, on ex - ceptions of defendant. The judge of the division to which the case was allotted has no authority to dismiss the suit, simply because it was improperly allotted to his division.
    Such action is not necessarily divisible, its purpose being the payment of a legacy out of tbe assets of a solvent succession, though the proceedings attacked show it to be insol. vent.'
    As a rule, a universal lieir or legatee, who accepts unconditionally a succession which he inherits, is bound personally for the debts thereof; hut, not for the special legacies, the discharge of which is restricted to the residue of the estate.

      The suit for the nullity is the foundation for the payment of the legacy.
    The judge of the division to which such suit is transferred cannot maintain jurisdiction over the demand in nullity and relegate that for the payment of the legacy to the division whence the suit came; the less so, when the plaintiff acquiesces in the transfer and invokes the jurisdiction of the court, in the last division, for a determination of the merits.

    The jurisdiction of a court, competent, ratione materia», represented hy divisions, may be assented to, in any division before which the cause or matter may he pending. Each division exercises all the powers of the court it represents.
    Nowhere does the Constitution forbid the trial, without previous allottment, of cases hy the judge of a division of the Civil District Court for the parish of Orleans, where the parties do not object or assent to such trial.
    An action for the nullity of succession proceedings and for the payment of n legacy involves demands intimately connected and blended. It is properly brought against the duly recognized universal legatee alone, when the executor is dead; where there is none; where there is no need of appointing one, and when the executor would have no interest in maintaining the proceeding attacked. The judgment to be rendered will hind all parties and constitute res judicata.

    The executor is not anecessary defendant. The universal legatee duly recognized, being the only one concerned in upholding the proceedings levelled against, is properly made the sole defendant.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Citarles F. Claiborne, for Plaintiff and Appellant.

      6. JDuplcmtier and W. Sandlin, for Defendant and Appellee.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is a suit by a special legatee against an universal legatee, for the payment of her legacy.

The suit was allotted to Division E of the Civil District Court for the city of New Orleans. Exceptions were filed to the effect that, inasmuch as the action assailed the validity of certain proceedings in the mortuaria, Division E had no jurisdiction and that the case had to be allotted to the Division to which the succession proceedings had been allotted:

It appearing that the mortuaria had been allotted to Division C, and, considering the exceptions to be well founded, the judge of Division E referred the case to Division C, without going through the ceremony of a formal allottment. The record was accordingly transmitted.

The defendant there pleaded that the order of transfer was unconstitutional and that, under article 130 of the Constitution, the judge of Division E could only dismiss and not transfer the suit.

The judge of Division C considered that the suit involved two objects : The payment of the legacy and the nullity of the proceedings attacked.

He therefore retained 'jurisdiction over the suit to annul, but referred back to Division E, the action for the recovery of the legacy.

Passing upon the merits of the controversy, as presented by the pleadings, the judge further decided that, for want of proper parties he could not determine of the validity of the mortuaria proceedings assailed, and so dismissed the suit.

The plaintiff appeals from the adverse rulings, referring back the money demand to Division E and dismissing the suit for want of necessary parties.

I.

It is unnecessary to determine whether the case ought or not to have been allotted when brought, or if it was then properly allotted.

Neither is it useful to decide whether the case thus allotted was properly referred to Division C, to which the mortuaria had been allotted.

The plaintiff-submitted voluntarily both to the allotment to Division E and to the reference of the case to Division C.

The objections of the defendant to a trial of the case by Division E having been sustained, he had no ground to complain when the case was referred to Division C. His object was to have the case tiied and decided by the judge of another division, and that object he accomplished by the reference made of it to Division C.

He claims, however, that the judge of Division E ought not to have referred the case to Division C; that he ought to have dismissed the suit.

Why dismiss the suiti The Civil District Court had jurisdiction over the suit brought to recover an amount exceeding by far the lower limit of its jurisdiction. When the suit was instituted before that court, it was therefore brought before a court competent to hear and determine it.

It is true that, for the purpose of exercising its powers, that court is represented by five divisions, each presided over by one judge, and that each division can wield and apply all the powers of the court in cases before it; but not one of those divisions has a right to dismiss a suit of which the court has undoubted jurisdiction, merely because it was allotted irregularly to that division instead of going to the division to which it properly belongs.

As the mortuaria proceedings had previously been allotted to Division C, and as the present action was an outgrowth of those proceedings, or are necessarily connected therewith, it was eminently proper for the judge of Division E to refer it to Division C.

The law does not require vain things. Had the suit been dismissed, that would have required of plaintiff to pay costs not legally due then, and to have brought a new suit, which would have had again to be allotted, and mom constat that then it would have gone to Division C, to which it properly belonged. It might have gone to another division.

It would have been imposing on plaintiff an unauthorized hardship, and it was therefore the duty of the judge of Division E to have transferred the case to Division C, as he did.

What occasion has the defendant to complain of the transfer as made?

Nowhere does the Constitution say that no division of the Civil District Court for the Parish of Orleans shall hear and determine a case, not regularly allowed to it, when parties make no objection or consent.

With a view to correct previous abuses, the Constitution wisely provides for the allotment of cases before that court, and this Court, after mature consideration of the spirit and letter of the provision, has held that it is not mandatory but merely directory. Therefore, in the absence of objection for want of an allotment, the parties are viewed as assenting to the jurisdiction as though the allotment had been made and the division is authorized to exercise over the controversy all the powers of the court itself. Buisson’s case, 33 Ann. 1425.

The Constitution, however, provides and has been construed as meaning differently in criminal matters. Adotto’s case, 34 Ann. p. 1.

Hence we conclude that, as the plaintiff voluntarily executed the order of transfer from one division to another, rendered in exceptions of defendant, and has invoked the jurisdiction of the division to which the case had been transferred — she (plaintiff) has exercised a right of waiver if the transfer was objectionable, and that the defendant cannot complain.

The judgment to be rendered will bind alike all the parties to this suit and so constitute res adyudioata.

II.

The next question to be considered, is whether the judge of Division C had a right to divide the suit, to retain jurisdiction over part and to refer back the other part to Division E.

Further, whether he properly dismissed the suit for want of necessary parties.

(a) The petition is lengthly, not uselessly so however.

The object of the suit was the recovery of a special legacy from a universal legatee, duly recognized.

To recover in such case, the law requires that the legatee be restricted in the satisfaction of the judgment which lie may recover to the succession assets — and does not permit satisfaction out of the property of the heir, testamentary or legal. That heir, by accepting the succession makes himself liable, personally, only for the debts, but not for the legacies which must be discharged out of the succession property. R. C. C. 1013. In such a case, the heir may relieve himself by abandoning to the legatee what remains after payment of the debts. R. C. C. 1465, 1511, 1512, 1634, 1635.

It therefore became necessary for the plaintiff to allege that, after payment of the debts, there remained succession property, of whatever nature, out of which her legacy could be satisfied. As, from an inspection of the mortuaria proceedings, it would appear that the succession was absorbed by the debts, and was therefore insolvent and, as the plaintiff considered that those proceedings had been fraudulently combined by the executor and the universal legatee, for the very purpose of showing a state of insolvency and thus defeating, if possible, the payment of the legacy — she charged with precision the reasons for which those proceedings, as far as they injuriously affected her, should be annulled and revoked.

The allegations and charges made to that end were proper to put the defendant on her guard and to enable her to prepare her defense. They constitute a proper foundation for the recovery of the legacy.

They were conclusive to the end in view and did not constitute a distinct and separate suit.

The two demands, for the nullity of the succession proceedings attacked and for the payment of the legacy, were the one, the foundation of the other and theiefore so intimately blended that they well could be set forth and conducted pari passu.

This is so true that, unless the proceedings assailed are set aside, the plaintiff cannot recover the legacy from the defendant, as it can be discharged only out of the residue of the succession. The existence of such residue, actual or constructive, is an essential condition precedent foi’ satisfaction of the legacy.

Euling as we do, we do not wish to be understood as saying that an heir, or a universal legatee, who accepts unconditionally the inherited estate, may or may not be held liable for the payment of a special legacy, in a proper case.

We simply hold that the plaintiff has brought but one suit, whicl was in character and object, as framed, indivisible and that there is error, in the transfer to another division of the money demand.

(b) It remains now to be considered whether the case was properly dismissed for want of proper parties.

The suit is brought against the universal legatee duly recognized though not put in possession by a formal decree.

The proceedings levelled against, were conducted by the executor appointed by the will, who died long before the institution of the suit, but after he had completely administered upon the succession entrusted to him, though he was never regularly discharged from his functions by the court.

The will had given him the usufruct of the succession during life, and that usufruct, whether nominal or valuable, determined at his death.

When he departed from this world, there was nothing apparently to be further administered upon, which would have justified the appoint-' ment of a dative executor. The succession property had been sold and adjudicated to the universal legatee who had accepted the sucession unconditionally.

It is a wise rule that, in suits for the nullity of judgments, all who are interested in maintaining the judgment attacked ought to be made parties; but we fail to perceive how the rule can be invoked in a case in which the only party concerned (the universal legatee) in maintaining the proceedings assailed, has been made defendant. We are powerless to discover what interest the deceased executor or his succession has in maintaining proceedings carried on by him.

It would have been an idle work to undertake to have a dative ex-cutor appointed when none was necessary, when an inventory of the uccession would have disclosed no property whatever on which to adinister, and when there would have been no foundation on which to ase the amount of the bond to be given and required by law.

We are at a loss to discern what benefit can be derived or injury stained by the universal legatee in finding that she is the only esntial party, and that therefore no other needed be made.

It is therefore ordered and decreed that the judgment appealed from .annulled and reversed.

It is further ordered and decreed that Division C of the Civil Dis-ct Court retain jurisdiction over the demand for the payment of the „acy transferred to Division E of said court; that this case be reinited; that the exception of want of proper parties be overruled; t the defendant do now answer to the merits, and that the case be ■tlier proceeded with according to law, the defendant to pay costs of eal.