text:
    No. 10,398.
    Succession of Joseph Lorenz.
    1. Tn il proceeding' taken to put heirs In possession of an estate, an issue must he joined, as in other civil matters, with tlie administrator in possession, anil proof must he taken ami judgment rendered contradictorily, recognizing their capacity.
    2. .Judgment of foreign countries must he clothed with all the forms required to prove their authenticity, in the country in whisk they are pronounced, otherwise copies of samo will not lie considered autlientic, and cannot be admitted in evidence in tlie tribunals of this State.
    3. What purports to he the exemplification of a record in the Imperial Royal District Court of FrUdlnntl, in the province of Bohemia, in the Empire of Austria, which does not contain intrinsic evidence of a judgment or decree of that court, and which is not shown liy extrinsic ovidence, to have lieen in the form of -a judgment or decree oj' such court, cannot, ho admitted in evidence ill onr court as'that of such judgment or decree.
    APPEAL from tlie Cml District Court for tlie Parish of Orleans. Monroe, J.

      A ug. JBernmi for Plaintiffs and Appellants.

      Gw. A. Breaux for Defendant and Appellee,.
   Tlie opinion of tlie Court was delivered by

Watkins, J.

Tlie deceased, Joseph Lorenz, formerly a citizen of Erüdland, Bohemia, a province of the Austrian Empire, died in New Orleans oil the 17th of November, 1887, intestate, leaving a succession which consisted exclusively of cash and movables. It was placed under an administration by the public administrator — there being no known lieirs of tlie deceased, present or represented; and when his gestión closed there was a balance of $2,722 18 shown to be on hand, by the final account of December 19th, 1887.

The present proceeding was instituted by E. Von Meysinburg, Consul General of Austria, resident of said city, as tlie agent of certain persons residing in Erüdland, Bohemia, to have them recognized and put in possession as the lieirs of said estate.

It was orginally begun by rule, but it was dismissed by the court as of nonsuit, and this one was commenced by citation to tlie public administrator, in lieu thereof.

The answer is a general denial, coupled with an averment that the parties named are not tlie lieirs of Joseph Lorenz, deceased.

On tlie trial, counsel for the petitioner offered to file in evidence tlie procuration oí the Consul General, along with what are alleged to be exemplifications from the records of a certain court in Bohemia, Austria-, whereby the petitioning principals were duly recognized as the collateral kindred of the deceased and, as such, entitled to inherit his estate. These documents are written in die German language, and are brought up in the original annexed to the record, and it, also, contains a translation into English.

All of these were objected to as evidence, on the grounds :

“ That the proceedings offered cannot stand as evidence and in lieu of evidence for the decree which is asked for herein to recognize certain heirs ; that said judgment of court has not by any proceeding whatever been recognized as the judgment of a foreign-court; that the pi’oceeding is an ex parte proceeding which is not binding upon the public administrator in a proceeding against him.”

These objections were sustained by the judge a, quo, and the testimony rejected, and it was brought up annexed to a bill of exceptions, so that, in the event of an adverse ruling in this court on the question of its admissibility, we could examine it as applicable to the merits, and decide the issues involved.

The contention of the counsel for the public administrator is, that in a proceeding taken to send heirs into possession of an estate, an issue must be joined, as in other civil matters, before judgment can be rendered. That such proceeding must be conducted contradictorily, and that no testimony can be admitted on the trial, over objection, which has been taken ex parte.

To put the defendant’s view more tersely we quote from his brief at page 2, viz:

“ If the decedent had died in Austria, and an administrator, or officer, * * had been appointed under its laws, and the claimants herein had there proceeded contradictorily to have themselves adjudged heirs, upon such a record the court of probate here, in ancillary proceedings, would have admitted the proceedings, and held itself bound by the judgment, but such is not the instant case.
“There was no succession in Austria; but-in independent proceedings, ex parte merely, the petitioners obtained an order, nota judgment, which they sajr is binding.”

This objection raises a question as to what effect is to be given to the proceedings of the Austrian court; as to whether it presents, in effect, any judgment or decree on the question of the heirship of the claimants.

It is a requirement of our law that “ when the heirs '* * having a right to a succession, present- themselves, or send -their powers of attovney, they are bound to cause themselves to be recognized as such, and shall be put in possession by the judge of the place where the succession is opened, after having cited the curator who has been appointed for the succession.” R. C. C. 1193.

Code of Practice, Article 1000, is couched in like terms.

It is elementary, that the form and effect of the actions are governed by the law of the place where they are brought. C. P. 13.

It has been held, invariably, that in such matters, heirs must proceed by suit. Caldwell’s Heirs vs. Glen, Curator, 6 R. 9.

And that ex parte proceedings for the recognition of heirs, bind neither creditors or third persons. Dalton vs. Wickliffe, 35 Ann. 355; Succession of Lampkin, 35 Ann. 418; Succession of Charmburg, 34 Ann. 21.

Our law further provides that the applicants “ shall file along with their petition, all such proofs as may go in support of their application, to the end that the curator may.be made acquainted with them.” C. P. 1001.

It further provides that, “if from the examination of the testimony' produced in support of the prayer, the judge discovers that the petitioners are entitled to the succession, he shall put them in possession of it.” C. P. 1003.

It is plain, that the question of the competency of the evidence, is one for the court a qua, and that it is authorized to judge of the sufficiency of the proofs offered in support of the pretensions set up by persons alleging themselves to be heirs to an estate under its jurisdiction; and it was the duty of the administrator to require strict, legal proof of same.

It is true that our law provides, that “ when judgments have been rendered in foreign countries, the copies, presen ted shall be considered anthentic, and admitted in evidence in the tribunals of this State, if they are clothed with all the forms required to prove their authenticity in the country in which they are pronounced.” C. P. 753. (Italics are ours.)

Foreign judgments have frequently been given effect, by the decrees of our courts. Brannahan vs. Tanner, 16 La. 434; Jones vs. Jamison, 15 Ann. 35; Rowand vs. Jarvis, 5 Ann. 43; Railroad Company vs. Thornton, 12 Ann. 736; State ex rel. Plaisant vs. Railroad Company, 38 Ann. 313.

But in our conception, what is presented to us as a judgment of the Imperial Royal District Court of Friidland, in the province of Bohemia in the Empire of Austria, is not clothed with all the forms reqrdsite to prove its- authenticity, as such, in that country. It contains no intrinsic evidence of a decree, or judgment of that court; and no extrinsic evidence was offered in the court below that the forms of law required in that country had been pursued, and that such decree — if, indeed, it be one — legally fixed the status of the claimants there.

While it is perfectly true that the claimants are Austrian subjects, and are, therefore, amenable to the laws of that Empire, and within the jurisdiction of the courts of that country ralione personas, it is quite apparent that the res, i. e., the succession of Joseph Lorenz, was not; and hence, there was nothing within its control which could make its decrees effective, raiione mater Ue.

A careful examination of the record offered in evidence, has satisfied us that, at most, the proceeding- was ex parte, and the hearing- was an extra judicial one, and had for its object the talcing of the testimony of certain witnesses, who voluntarily appeared before the judge, and gave in their evidence, in order that it might be attached to a power of attorney to be executed in favor of and forwarded to the Austrian Consul at New Orleans. In effect, this was merely a commission to take testimony, before an Austrian judge, of certain persons residing in that Empire, and which had no force and effect whatever, as a judgment of court in that country.

It was the duty of plaintiffs to have obtained a commission from the court in which the suit for the recognition of the heirs was pending, to take the testimony of witnesses in Friidland, Bohemia, on which they relied.

The evidence offered was correctly rejected.

Judgment affirmed.


source: Caselaw Access Project

author: McEnery, J.

license: Public Domain

text:
    No. 10,436.
    The State ex rel. V., S. and P. R. R. Co. vs. W. L. Emory, Justice of the Peace.
    Act 7 of 1888, giving justices of tlie peace jurisdiction in cases of trespass, whore the same occurred is not a local or special law hut general in its character, applying to all magistrate’s courts throughout the State and to all corporations.
    y^PPLICAITON for Prohibition.

      F. L. Stubbs, for the Relator.
   The opinion of the Court was delivered by

McEnery, J.

Relator, a corporation domiciled in the Parish of Ouachita, having- been sued before the respondent, justice of the peace for ward four, Parish of Lincoln, excepted to the jurisdiction of the ma'gistrate’s court, which exception was overruled • and judgment by default rendered against relator.

The relator seeks relief in this application for a writ of prohibition. Tlie claim of the respondent justice to jurisdiction rests upon Act No. 7 of 1888, which is “ an act to amend and re-enact Article 1069 of the Code of Practice, and is as follows : That Article 1069 of tlie Code of Practice be amended and re-enacted so as to read as follows: In civil cases within their competence, justices of the peace can only cite before them such persons as are domiciliated or residing within the limits of their jurisdiction, or strangers who may chance to be there; and in all cases where any corporation shall commit trespass or do anything for which an action of damages lies, it shall be liable to be sued in the ward where such damage is done or trespass committed.”

Relator alleges that said act is violative of Art. 46 of the Constitution of the State, as by a special law it assumes to regulate the jurisdiction of magistrates’ courts with reference to a certain class of defendants only,” and therefore Art. 1070, C. P., is still in force and regulates the jurisdiction of magistrates’ courts.

Art. 4G of the Constitution says that “the General Assembly shall not pass any local or special law on the following specified objectsAmong the prohibited objects of legislation is “regulating the practice or jurisdiction of any court.”

Tlie meaning of said article is plain and unambiguous. The evident intention is that the General Assembly shall enact no local or sj)ecial law to regulate in any particular locality the jurisdiction or practice of any court in any particular and designated locality, so as to exempt it from the general jurisprudence aud practice of the court throughout the State-The act in cpiestion is general in its character as its application is to all justices’ courts throughout the State. It applies to no particular corporation, but to all corporations, that may commit trespass — railroads, stage, steamboat, electric light and all other corporations. No particular corporation is designated in the act.

Act No. 7 of 1888 is neither local nor special, and therefore does not violate Articles 46 and 47 of the Constitution of 1879. The respondent justice had jurisdiction of the cause. It is, therefore, ordered that the writ of prohibition prayed for by relator be denied and the rule discharged at relator’s cost,


text:
    No. 10,400.
    The State of Louisiana and Giuseppe Di Carlo vs. John Abbott.
    The Governor is vested with power to reniOAe an inspector of weights and measures, and the courts are without authority to inquire into the reasons for the removal.
    In the commission if words are used equivalent to •' remoAal ” and vliich plainly shoAvthai the party appointed is to act in the place of the one holding the office, this is sufficient to operate a remoAal, and to entitle the party appointed to take possession of the office. The last appointment supercedes the first, and is a manifestation of the poAver vested in the Governor to remoAe the incumbent. ]So other declaration is necessary.
    A person avIio has declared his intention of becoming a citizen of the United States and has qualified as an elector is a citizen of the State and elegible t o hold office.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Walter K, Rogers and Aug. Bernaw for Plaintiffs ami Appellees.

      H. L. Lazarus and Lionel Adams for Defendant and Appellant.
   The opinion of the Court was delivered by

McEnery, J.

John Abbott the defendant was nominated and aqipointed by the Governor, and confirmed by the Senate to the office of Inspector of Weights and Measures. He qualified on the 25th July, 1888.

On the 22d day of December following, the Governor appointed to the same office and issued a commission to Di Carlo.

The commission reads “that I have nominated, constituted and appointed Giuseppe Di Carlo, Inspector of Weights and Measures, for the First District in Orleans parish, vice John Abbott.”

Proceedings under the intrusion-into-office Act, were instituted by the State and Di Carlo to have Abbott adjudged an intruder and usurper of said office, and that said Di Carlo be declared entitled to said office and to the quiet enjoyment of the same.

The defence is that Di Carlo is an alien and ineligible, and the commission issued to Mm is therefore null and void, and that the appointment of Di Carlo and the issuance of a commission to Mm worded as stated, before the expiration of Abbott’s term of office has expired, does not operate ipso facto the lathers’ removal from the office and there being-no vacancy the appointment is mill and void.

Prior to his appointment Di Carlo had declared his intention to become a citizen of the United States. He had qualified as an elector and was therefore a' citizen of the State, hud eligible to said office. State vs. Fowler, 41 Ann. 380.

if the commission had issued stating that the Governor had appointed Di Carlo vice Abbott removed, there could be no question as to the vacancy created by the. Governor under the authority vested in him to remove for special causes,enumerated in .Secs. 3914, 3915, R. S. Art. 194 of 1877. His reasons for removal can not be inquired into. His discretion and judgment are absolute. State vs. Lamantia, 39 Ann. 449.

There is no law regulating the manner in which the Governor shall remove an officer. No form of sot words is designated by any statute which the executive shall use in creating a vacancy by removal. The law being silent as to any particular form to be used by the Governor, the judiciary is without power to make one. If in the commission, words are used which are equivalent to “ removed,” and which plainly show that the party appointed is to act in the place of the one holding tin-office, this is sufficient to operate a removal and to entitle the party to take possession of the office.

The last appointment supercedes the first and is a manifestation of the power vested in the Governor to remove the incumbent for cause. No other declaration is necessary.

In the case of Dayries vs. Yoist, 25 Ann. 396, it was held “that the relator having a commission bearing date a month later than the commission of Yoist, the presumption is that the Governor had cause for tin-removal of the latter which was effected by the appointment of Dayries.”

This was a case in which the Governor, as in the instant case, had the powér to remove for specified causes. It is referred to as authority for the doctrine announced in the Lamantia case.

We conclude that the last commission issued in this case removed the defendant from the office of Inspector of Weights and Measures for the First District, Parish of Orleans, and presume that the Governor had cause for the removal, and we are without power to inquire into the reasons for his action.

Judgment affirmed.


author: Fenner, J.

text:
    No. 10,366.
    J. L. Brent et al. vs. City of New Orleans et al.
    1. Xlu*. assessment oí* taxes against the atljudic itee oí* a confiscated property during liis tenure thereof is legal and valid. He reaps the fruits and should bear the burdens.
    2. At the death of the confisoatee, his heirs take the property free from taxes under Act 3 0 of 3880, and. are entitled to have the inscriptions thereof as mortgages and privileges ©rased in so far as they affect tin*, confiscated property: but the assessment stands as against the adjudicate».
    3. Whore the original owner has purchased the estate of the adjudicatee at a confiscation sale, he steps into the latter’s shoes and is subject to the same rights and obligations.
    4. At his death, his heirs, who have accepted Ms succession, succeed to Ms obligations, and while they may require the confiscated property to be released from taxes due and from resulting privileges and mortgages, they cannot demand that the assessment be annulled or escape from any obligations which rested on their decujus by reason thereof.
    APPEAL from the Civil District. Court for the Parish of Orleans. Monroe, J.

      Henry O. Miller and While & Bannders for Plaintiffs aud Appellees.

      W. B. SonunereUle. Assistant City Attorney, for Defendants and Appellants.
   The opinion of the Court was delivered by

Fenner, J.

Article 57 of the Constitution provides that “ the heirs to confiscated property may be released of all taxes due thereon at the date of its reversion to them.”

Act No. 10 of 1886 declares : “All taxes, State, parochial and municipal, due on property which may have been confiscated by the United States, shall, at the date of its reversion, he released to the heirs of filie parties who suffered the confiscation.”

The late Duncan F. Kenner was, at the time of the late war between the States, the owner of certain property in this city. The property was libelled and condemned to conñscation, and was adjudicated to L. M. Day, who entered into possession thereof. After the war, Duncan F. Kenner purchased the interest of Day in the property and re-entered into possession. The property was thereafter taxed in the name of Kenner. It was so taxed by the city of New Orleans for the year 1887, and tlie taxes were duly inscribed as liens and mortgages on the property according to law.

Kenner died on July 3d, 1887, and his heirs re-entered into possession of the property.

They briug the present action under the Act of 1886, and have recovered a judgment decreeing that the assessments for the year 1887 for taxes due the State of Louisiana and the city of New Orleans on the property described, are null and void and of no effect, and that the inscriptions thereof as mortgages and privileges against tile above described property be erased and cancelled.”

From this judgment the city appeals. The case involves and requires some nice distinctions.

In the learned commentary of Toullier it is said that the word persona, in its primitive sense, was applied to the masks worn by the actors in the dramatic performances of Rome, and Ureece, which masks were made to represent the character which the actor performed; and he says that, in the same sense, it was subsequently employed in jurisprudence to signify the role or si aim which a man Alls in the social organization. Thus the same man may, at different times, and even at the same time, represent different persons or roles; as, in his youth he presents the person of a minor, and, after his maturity, that of a major, each having different qualities, rights and obligations.

Now', in this ease, we must consider Duncan F. Kenner as representing two distinct persons: one, that of the confiscatee of this property; the other, that of the purchaser from, and assignee of L. M. Day.

As against Kenner, the confiscatee, and as against his heirs, the assessment of this property was, and remains, null, void and of no effect; but as against Kenner, the purchaser and assignee of Day and as against Ms heirs as such, the assessment was and remains perfectly valid and legal.

If Day had retained his title and remained in possession, the heirs of Kenner would, undoubtedly, under the law, take the property free from any taxes which had been assessed against it in the name of Day, and would have been entitled to demand the erasure of all inscriptions importing an incumbrance on the property; but under what law could Day or Day’s heirs have claimed the nullity of the assessments validly made against him, or release from any obligations resulting from such assessment ?

This indicates precisely the rule which must be applied in the solution of the questions here presented.

The plaintiffs take and hold the property solely in their capacity as heirs of Kenner, the confiscatee, and released from all taxes due thereon, and they are entitled to demand the erasure of all inscriptions purporting to encumber the property for such taxes; but they have no right to claim the nullity of the assessment made in the name of Kenner, the assignee of Day, any more than tliey would liare liad, if the assessment bad been made against Day himself.

The Act of 3886 was never intended to release the purchaser at a confiscation sale from taxes assessed in bis name against the property during his tenure. As he enjoys the fruits of the property, it is just that he should bear its burdens. As assignee of Day, Kenner stepped into bis shoes, and his rights and obligations are identically the same. The plaintiffs, having accepted his succession, succeed to his obligations whatever they may be.

These views necessitate a change of the judgment, in favor of the city of New Orleans, which is the sole appellant.

Plaintiffs’ demand to have the assessment declared null, void and of no effect must he rejected,; but they are entitled to have the inscriptions thereof as mortgages and privileges erased and cancelled in so far as they affect the confiscated property.

It is, therefore, adjudged and decreed that the judgment appealed from be amended by striking out that portion thereof which decrees the assessments for 1887 to be null, void and of no effect, and that, as thus amended, the same be now affirmed, plaintiffs to pay costs of appeal.


author: Bermudez, C. J. Fenner, J.

text:
    No. 10,287.
    S. L. James vs. Adolph Meyer.
    The opening of a succession is an independent proceeding winch ought to be docketed under a proper title and number and allotted as required by the Constitution in the Parish of Orleans.
    Irrogulaiities in such particulars cannot be claimed to'have been acquiesced in by minors or llioir legal representative.
    A father cannot abdicate the tutorship of his children although he be a non-resident tutor, where the intests of his minors in this State are involved in .judicial proceedings and lie is present in the State.
    The appointment of a stranger as dative tutor to such minors, notwithstanding the recommendation of a family meeting, is an absolute nullity.
    I7nder the Act of 1843, !R. S. 3838. guardians residing out of the State, but within the'United States, have a right to represent the interest of their wards in this State.
    A n illegally appointed tutor cannot represent the minors in proceedings to effect a partition at private sale.
    The property owned by minors, in common with others who are not co-heirs, can be sold to effect a partition at private sale under the Act of 1878, amending and re-enacting that of 1809, only where the minors are properly represented by their tutor or tutrix, and on the. authority of the court given on the recommendation of a family meeting duty convened.
    Where a tutor owns property in common with his minors, which he wishes to partition, the appointment of special tutors, or of a special tutor, is necessary, where there exist opposite interests in the partition. The under tutor may represent the minors eventually in such a case.

      The ownership of minors cannot be divested unless all the forms of law have been observed and, in cases of sale, unless the price was paid to one who had capacity to receive it and to grant discharge therefor.
    Although, as a rule, purchasers at judicial sales are not required to look beyond the decree of sale, still they are bound, at their risk and peril, to ascertain that the court ordering the sale had jurisdiction over the m a tier, and that it had the right, to exercise its discretion in the manner it did.
    One who lias agreed to purchase real estate cannot be forced to accept a title which is not unquestionably good and which is suggestive of litigation, the less so where the parties who may have rights are not parties to the suit, and would not he concluded by a judgment adverse to their ostensible or contingent rights.
    This is so, more particularly in cases in which minors are concerned.
    APPEAL -from the Civil District Court for the. Parish of Orleans. IUghtor, J.

      Bayne, Denegre if; Bayne and Alfred. Gold.thwaile, for Plaintiff and Appellee.,
    Farrar, donar <f- Krnttrchnitt, for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

The object of this suit is to force the defendant to accept the title tendered him to certain real estate which he had agreed to purchase.

His resistance is to the effect that the title, offered is not good and valid, and such as he can be compelled to take.

From an adverse judgment the defendant appeals.

It appears that James, the plaintiff, acquired the property in question in execution of a judgment compelling him to accept the- title tendered him to the same, and from which no appeal was taken.

The record shows that J. M. Lewis married twice, his first dying wife ' leaving one child and the second dying, leaving four children.

During the community between him and the second wife he acquired the property in question.

He opened the succession of his first-wife and mortgaged his half of the property to secure the rights of his child by Ms marriage with her.

After Ms second marriage, lie had removed to Alabama, where Ms second wife lived and where he was appointed guardian of their minor issue.

Subsequently,'averring that, appointment and the interest of his children by the second marriage in the property, he instituted proceedings in the Civil District Court for the Parish of Orleans for the convocation of family meeting on behalf of those children having in view the sale of the property at private sale, to effect a partition. The family meeting advised the sale, the proceedings were homologated and the sale ordered.

S. L. James having agreed to buy the property, but refusing the title tendered, Lewis brought suit against him before the same court.

Finding that the title tendered was not such as James was bound to accept, but thinking that it could be perfected, the District Court ordered that Lewis proceed to do what it thought should be done to accomplish that purpose, authorizing James to retain the amount duo the child by the first marriage and which was secured on Lewis’ half of the property.

Lewis then, by proceedings had in the suit against James to compel him to accept the title, procured on the recommendation of a family meeting, on behalf of his children by the second marriage, the appointment of one Girdner, a stranger, as dative tutor to those children.

An inventory was then taken and afterwards a family meeting was convened to have the share of the minors in the property sold at private sale to effect a partition. Its deliberations were homologated and the sale ordered.

Then, Lewis, joined by Girdner, Hied a supplemental petition in the suit, alleging that the title had been perfected, asking that James becited and after due proceedings condemned to accept the title.

James denied the validity of the title, averring that the proceedings under which Girdner had been appointed tutor were and are irregular, illegal and void for reasons stated.

Judgment was then rendered condemning James to accept the title, which he did, complying with the terms and conditions agreed upon.

It appears that James subsequently offered to sell the property to Meyer, who agreed to buy it; but Meyer, considering that the title offered was not good and not such as he was bound to receive, declined to accept it. Hence the present action against him to compel specific performance.

From an adverse judgment Meyer now appeals as already stated.

His defence is, that all of the proceedings of every kind and nature had in the cause of Lewis vs. James, relative to the succession of the second wife, the taking of an inventory, the appointment of a tutor, the calling of a family meeting are absolutely and radically null and of no effect, and have not divested the interest of the minors in said property and, therefore, the title tendered by James is not such as he can be lawfully compelled to take.

In support of that defence it is urged:

1. That the succession of the second Mrs. Lewis ought to have been regularly opened and allotted, and that this was not done.

2. That the appointment of Girdner as tutor of the minors of the second marriage is absolutely null.

3. That the court liad no power to convoke family meetings to advise with reference to the property of those minors who were non-residents.

Jt was surely quite irregular not to have opened the succession of the second Mrs. Lewis as had been that of the first, and as is usually done.

The opening of a succession is a new and independent proceeding which ought to be instituted clearly and unmistakably under a proper docketing by title and number.

When thus opened, the matter ought to be allotted, as the Constitution requires, to one of the divisions of the Civil District Court for the. Parish of Orleans.

However much the failure of an allottmerit may be deemed waived or ratified by parties who are capable of acquiescing in and assenting to, an irregularity of that kind, it cannot be successfully claimed, as a rule, that a tutor, or an under tutor, or minors who have no right to waive, have ratified the same.

Such opening of the succession of Mrs. Annie Lewis did not take place. The proceedings had touching her estate were carried on under the cover of the title of the suit of Lewis vs. James to compel the latter to comply with his promise to buy.

This was not meeting the requirements of the law.

But, conceding that those proceedings are regular, or that the succession was opened, as it ought to have been, it is manifest that the appointment of Girdner as dative tutor to the minors is an absolute nullity on its face, for the plain reason that tire father of the minors, who had been appointed their guardian in Alabama, was living and in this State at the time; that he could not abdicate the tutorship of his minor children even temporarily and permit a stranger to be appointed as their tutor to represent them in this State. R. C. C. 301, 253.

Under the provision of Act No. 145, p. 47, of 1843, relative to guardians of minors residing out of this State, but within the United States, he had a right to represent them in this State, occupying to some extent the same position as if he had not been a non-resident guardian. R. S. 3838,

As co-owner for one half of the property with his minors to whom the other half belonged, he had a right to have the property partitioned by sale, if not susceptible of a convenient division in kind, and to institute proceedings for that purpose contradictorily with a special tutor or the nilder tutor, if there existed any opposed interests in the partition. R. C. C. 1369; 9 Ann. 560; 15 Ann. 394; 23 Ann. 386, 763; 24 Ann. 175.

The Act of 1878, No. 25, p. 47, wlneli amends and re-enacts Act 134 of 1869, p. 207, repealing all conflicting legislation, authorizes the partition of property owned by minors and others, at private sale, only where the minors are duly represented by their tutor or tutrix, and whore the authority of the court has been given on the previously obtained recommendation of a family duly convened.

As it is apparent that in the present instance, the minors were represented neither by their guardian nor by a special tutor, or special tutors, or under tutor, it follows that by the proceedings had their title to one-half of the property was not divested and, therefore, did not pass to James.

Lt may be worthy of notice, that although it is alleged that James complied with the judgment exacting specific, performance, there is no proof in the record that the price paid by James was received by one who had authority to accept it and to grant a discharge. 35 Ann. 377.

The doctrine is surely well established that a purchaser at a judicial sale need not look beyond the order of salo as a rule; but the protection is extended only where the court had jurisdiction of the subject-matter and exercised powers vested in it by law.

A probate court undoubtedly has jurisdiction over the persons and property of minors, but it could not exercise validly its po wers to sanction the disposal of such property by one having no authority to represent the minors and to receive the price in case of sale.

In such cases, the purchaser is bound, at his risk and peril, to look behind the. order of sale to ascertain whether the power exercised was one which could have been legally exercised. Succession of Dumestre, 40 Ann. 571.

Tt is, therefore, apparent that, as .James never acquired title to the half belonging to the minors, he could not convey any to Meyer, who had a right to exact a. good and unquestionable title, conferring undoubted ownership in him, and who cannot be forced to accept one which is, to say’ the least, most doubtful and clouded and under which future, litigation would be imminent. He would be giving his money’ for property not transferrable to him and practically buying a law suit. 35 Ann. 570; 40 Ann. 847.

It becomes unneccessary to consider the Iasi, objection touching the power of the court in any ca.se to convoke a family meeting in behalf of non-resident minors.

No judgment against defendant would bind the minors who are not parties.

It is, therefore, ordered and decreed that tlie judgment appealed from be, reversed, and that there now be judgment in favor of the defendant, rejecting plaintiff's demand with costs in both courts.

On Application por, Rehearing.

Fenner, J.

Both parties, plaintiff and defendant, in this case, agree to tlie granting of a rehearing in this case, in order that certain additional facts may he embodied in tlie record, which they offer in the form of admissions, and ask us, on rehearing, to consider said admissions as part of tlie record and to render a new decision on tlie case as thus made up, or, if such cannot he done, to set aside our former decree and remand tlie case in order that opportunity may he given to take testimony as to such additional facts.

This court does not take testimony, nor does it consider cases made up by admissions of facts not presented in the court of first instance, ■whose judgment is brought up for review. This would- he an exercise of original jurisdiction.

But considering tlie consent of parties as above stated a rehearing is now granted; and -acting thereon, it is now ordered that our former decree he annulled and set aside, except in so far as it reversed tlie judgment appealed from, and that the case he remanded to the lower court to he there tried anew and proceeded with according to law, appellee to pay costs of this appeal.


text:
    No. 10,371.
    John Baldwin Sr. vs. Abiel C. Morey.
    1. A contract, which though beginning witli the words “sold this day,” proceeds to fix a price which is to be paid in future instalments and to declare that when tlie payments shall bo made as stipulated, the party “ will give a deed ” to the property, is not asalo passing title, hut a conditional agreement to sell, importing an obligation to transfer title only after tlio performance of the conditions, particularly when the alleged purchaser, in subsequent solemn acts, himself declares that tho title remains in liis alleged vendor.
    2. Tho possession voluntarily given to the promissee under snob contract is defeasible by bis failure to comply with tlie conditions of tlie contract.
    3. After such failure and when tlie promissee lias abandoned possession, tho pvomissor is entitled to re-enter, without liability for damages or revenue.
    APPEAL from tho Nineteenth District Court, Parish of fit. Mary. Oooñe,, J.

      Foster <& Mente for Plaintiff and Appellant:
    A contract, beginning with the words, “ sold this day,” declaring that tlie alleged purchaser shall pay tlxe instalments of the price at fixed periods, with, interest, and stipulating that “ when done, Baldwin, or his heirs, will give a good deed,” is not a sale, translating a title, but is a promise to sell, under which the title remains in the promissor. Thompson vs. Duson, 5th Southern Reporter, p. 58 ; 34 Ann. 677; 13 Ann, 361; 15 Ann. 483.
    Such a contract, being commutative, the dissolving condition is implied in it. C. C. Art. 2046.
    When the contract of sale is dissolved for non-payment of the price, the dissolution is retrospective, going back to the date of the sale, the vendor stands in relation to the property as though he had never parted with the title, and he is entitled to all the fruits and revenues which the property has produced while it was out of his possession. McKenzie vs. Bacon, et ais. 41 Ann. p. 9.
    Therefore such fruits and revenues can never belong to the vendee.

      AfortioH is the case when the contract is not one of sale, (under which title would have passed); but a mere promise to sell, under which the title always remains in the promissor.
    1). Oajfery, for Defendant and Appellee:
    1. A contract setting out that A sells to B all his unsold land, in a certain determinate body of land, containing a clause, that “ when done, A is to give a good deed in which the sale of intoxicating liquors will be prohibited” is a sale, passing title, and not an agreement to sell. 6 Ann. 776; 11R. 349; 12 lb. 474 ; 5 Ann. 656; 6 Ann. 26.
    2. A seller is bound to explain himself clearly as to the extent of the premises. Rev. C. C. 2491. A fortiori, when the propertyis sold by the acre, must be made known to the seller the number of acres, when he demands the price.
    3. When one sues to annul a contract so far as it vests title, he acknowledges the existence of the title, which he asks to be divested, else his suit, if he afterward say that lie did not convey title, is a mere moot case.
    4. Where one sells, delivers possession and afterward retakes possession, under agravated circumstances, the possession of the vendor, is atrespass and renders him liable to exemplary damages. 1 It, 140.
   The opinion of the Court was delivered by

Fenner, J.

Plaintiff, alleging non-compliance with, his obligations on the part of defendant, sues for the rescission of the following contract entered into on the 14th of February, 1878 :

“ Sold this day, to A. C. Morey, all the land included in the sugar-house lot on the Fuselier place, together with the sugar-mill and all the appurtenances, for the sum of $6,000; also all my unsold land on the Fuselier place, except swamp land, for $30 an acre. The $6,000 for the sugar-house and the $30 an acre for the land is to be paid Baldwin or his heirs, in 5 equal annual payments, together with interest at 6 per cent, to be paid annually, and all taxes; when done, Baldwin, or his heirs, will (jive a good deed, in which the sale of intoxicating liquors will be prohibited; when any part of the above land named is fully paid for, a deed will be given.”

The demand for rescission in this suit is confined to that portion of the contract referring to unsold land.

Defendant, admitting* the contract and not pretending’ to have paid anything on account thereof, sets up sundry opposing defenses and demands, as follows:

1. That the sugar-house and lot included iu the contract was subsequently sold by Baldwin to Copies & Dixon, whereby he has been damaged to the full amount of the price, viz: $6,000.

2. A denial that plaintiff has ever tendered to him the extent of the premises or caused the land to be surveyed so that respondent could know the amount due, with an averment that he has notified plaintiff before, and at, and since, the maturity of the instalments, that he was willing to pay.

3. That by vexatious and groundless litigation in enjoining defendant from disposing of the property, plaintiff has damaged him to the extent of $6,000.

He prayed for judgment ordering a survey of the property, and for the granting of a delay thereafter for payment of the price, and for $10,000 damages.

Subsequently, defendant filed a supplemental answer setting up that plaintiff had taken unlawful possession of the land, and asked a further judgment for $12,000 exemplary damages and for $2,000 per annum as rents and revenues.

The contract between the parties is, under our jurisprudence, not a sale, but a conditional agreement to sell, not transfering the title, but importing an obligation to make such transfer on compliance with the conditions stipulated. Thompson vs. Duson, 40 Ann. — ; Broadwell vs. Raines, 34 Ann. 677; Garrett vs. Crooks, 15 Ann. 483; Knox vs. Payne, 13 Ann. 361.

If any doubt existed as to this being the effect of the contract, it is removed by the express construction placed upon it by Morey in a contract of sale of a part of the land made by him to a third person shortly after its date, in which he declares that he “ obligates and binds himself to procure from John Baldwin, Sr., in whom the title now rests, a lull and complete title thereto when said notes and interest shall be paid.”

The anomalous and unsavory evidence in this record need not be detailed or analysed. It convinces us that Morey was an adventurer, who came to this country to make his fortune, and who had married the daughter of plaintiff about one month before tins contract. So far as that part of the contract which covered the sugar-house lot was concerned, we are satisfied that it was abandoned by both parties. The sugar-house always remained in the possession of Baldwin who made valuable improvements on it, with the knowledge of Morey, who never made any opposition or set up any claims thereto till after this suit was brought.

The other lands appear to have been passed into Morey’s possession and to have been partially cultivated by him during the year 1878.

A very short time served to convince Baldwin that he had found a bad husband for his daughter and a worthless purchaser for his land. Morey maltreated his wife and began trying to sell off the land for which he had no title and had not paid a cent.

To stop the latter, Baldwin brought a suit against him in December, 1878, in which he represented that Morey was claiming title to the property embraced in the contract, and prayed for a,■judgment decreeing that the title remained in petitioner until the terms and conditions of the contract were complied with.

In February, 1879, when the first .instalment under the contract matured, formal demand was made on Morey, to which he responded that the extent of the premises was not ascertained and demanded a survey. Baldwin responded that he well knew the extent of the premises, that he had received and enjoyed possession thereof and that if he wanted a survey, he might make it himself.

Morey subsequently called on the counsel for plaintiff and told him that he didn’t intend to pay for the land and was going to leave the country.

Not long afterwards, in April or May 1879, 'he did leave the country, and has never since been seen or heard of clown to the trial of this case in 1886. Even his own counsel had no knowledge of his whereabouts and liad been unable to have any communication with him since his departure.

After the filing of this suit and tlxe disappearance of Morey, plaintiff, under advice of counsel, resinned possession of the land and has had it ever since.

The wife of Morey obtained a divorce and married again in 1880.

There is a great deal more evidence in this record, which we do not think it necessary to comment upon.

The foregoing statements of law and fact sufficiently indicate the judgment that must be rendered.

It is evident that Morey never acquired title to the. land, that his possession thereof was precarious and defeasible by his failure to comply with his obligations under his contract, that he did not, and did not intend to, comply with those obligations, that his pretended excuse for non-compliance on the ground that the extent of the premises was nnascertained, has no force, coming from one who had taken possession under lire contract; that Baldwin had the right to re-enter into possession of his property after Morey failed to comply with Ms contract, abandoned possession and departed for parts unknown, and is not responsible for any damages, rents or revenues.

Logically viewed, the contract has terminated by failure to comply with the conditions, but as contrary pretentions were set up, and as plaintiff is entitled to have the cloud removed from his title, judgment will be granted as prayed for.

It is, therefore, adjudged and decreed that the judgment appealed from be annulled, avoided aud reversed;-and that there now be judgment in favor of plaintiff and against defendant decreeing that the contract involved be rescinded and declared to be null and void and of no effect, and that the reeonventional demands of defendant be rejected; defendant to pay all costs in the court below and those of this appeal.


author: Watkins, J.

text:
    No. 10,430.
    Succession of Mrs. Bridget Murray, wife of George Grover.
    1. An heir has the right to bo discharged from the payment of his ancestor’s debts, out of his own property, by abandoning the effects of his ancestor’s succession to his creditors ; (he right of preserving the identity of his own property from that of his ancestor’s succession ; and the right of claiming out of the ancestor’s succession the debts that are, due to him therefrom — but to do so he must safeguard his acceptance of the succession, by a clear and distinct reservation of the benefit of inventory
    2. A party, in offering written documents in evidence, has the right to restrict its effects as evidence to a doiiuiie purpose, and is nob compelled to offer them for whatever they may be worth as evidence.
    3. Articles 155)1 and 1595 of the Civil Code employ the ‘word “testaments” in its generic sense, and the law-maker intended it should convey tbo idea that the several formalities which are required in the confection of different testaments, must be observed therein respectively, and not collectively. The law does not make it the duty of notaries to state (lie qualifications of witnesses, in the sense of It. O. C. 1591, but it does make it their duty to state their qualifications, in the sense of It. O. C. 1578.
    J. It is a sacramental requirement of a notary, that ho shall make express mention of all formalities having been fulfilled, but not that they were done at one time and without turning aside to other acts. But only those formalities which are specified in Article 1578 are referred to. ’
    APPEAL from the Civil District Court, for tbe Parish of Orleans. ■ JEllis, J. • • • •

      Motee & Cohn aud Felix J. Dreyfous for Appellant.

      A. J. Lewis for Appellee.
   The opinion of the Court was delivered by

Watkins, J.

Mrs. Bridget Murray, wife of George Grover, died in the city of New Orleans, on the 16th of November, 1888, leaving a nuncupative testament, which was received by public act. This will is couched in the following terms, viz :

“ State of Louisiana — City of New Orleans.
“Be it known that on this ninth day of December, eighteen hundred and eighty-four.
“I, Alphonse Barnett, a notary public, in and for the city and parish of Neto Orleans, duly Commissioned and sworn did, at the request of Bridget Murray, wife of George Grover, proceed lo her residence at the corner of Bieiwille and Bwrgundy streets, m the second, district of this city, where I found the said Mrs. Grover, sound in mind, memory and understanding, as she appeared to me, notary, and the witnesses hereinafter named amd undersigned, amd she requested of me, notary, to receive her last will and testament, as folíolos, to-wit:
“My name is Mary Bridget Murray, and am a resident of this city.
“ I have no father or mother living and no children.
“ I give and bequeath to my husband George Grover, the whole of my property, movable and immovable, I may die possessed of.
“ I appoint my said husband George Grover, my testamentary executor, with seistim of my estate.
“ I revoke all loills and testaments heretofore made by me.
“ It is thus that the foregoing ivill was dictated to me, notary, by the testatrix to the undersigned notary in presence of said witnesses, a/nd the undersigned notary did ivriteit down as dictated by said testatrix impresence of said witnesses, and lecture of said ivill as dictated and written having been given by the undersigned notary in a loud and intelligible voice, to the said testatrix m presence of said witnesses, as she declared to me, notary, m presence of said witnesses, that it contained her last will and testament in which she persists, the whole was done atone time without interruption or im-ning aside to other acts, in the presence of said witnesses, who hewe signed their names with said testatrix a/nd me, notary, the witnesses hereto being Bobert (Beuben) T. Wheeler, Joseph Baillet and William S. Mackey, residing in this city and of Imvful age. The na/me of Bobert ei'ased and that of Beuben ■interlined appd before signing the name of Mary interlined also appd before signing.
MABY GBOVEB.
BEUBEN T. WEEELEB.
JOSEBE BAILLET.
WM. S. MACKEY.
A. BABNETT, Not. Bub.

One J. G. Spor, upon allegation and proof of the incapacity of the universal legatee appointed in said will, to accept and perform the functions of executor, applied for and obtained the probate of the will, and procured an order of court placing said universal legatee in possession of the property of the deceased. Thereupon Mrs. Margaret Torregano, alleging herself to be the surviving sister of the deceased, of the full blood, and her sole legal heir, in the absence of both descendants and ascendants, instituted this suit for the revocation of the will, on the ground that it contains certain radical defects of form, which vitiate it, and make it an absolute nullity, and therefore void.

The various alleged defects in the will are set out with great particularity and in extenso in the petition, but as they are succinctly summarized in plaintiff’s brief, we quote them, viz :

“1. It was not received by said notary in the presence of three witnesses, of lawful age and residing in this place, and otherwise competent as required by law.
“ 2. It was not written by said notary as it was dictated and in the presence of the said three witnesses. ■
3. It was not read by said notary to said testatrix in the presence of the same three witnesses.
4. It was not signed by the testatrix in the presence of the same, three witnesses and the said notary.
“ 5. It was not signed by the same three witnesses.
6. The act states the testatrix to be ‘ Bridget Murray, 'wife of George Grover,’ and further states that she dictated to the notary her name to be ‘ Bridget Murray,’ whilst the act is not signed with that name, but is signed ‘ Mary Grover,’ an entirely different name.
“7. The interlineation of the word ‘Mary’ before the word ‘Bridget, on the first page of said act, was made after the signing and conclusion of the will, as is shown by the interlineation running irregularly between the ruled lines of the writing paper, and the scrawled signature ‘ Mary Grover’ and was neither dictated nor approved by the testatrix.
“ 8. The erasure of the word ‘ Bobert,’ and the interlineation of the word ‘ Beuben,’ were not approved by the testatrix, and show two different persons and appearing at different times, and of whom only one has signed his name.
9. The three persons who signed their names are not the three witnesses referred to in the caption or at the end of the will, and were not all present as witnesses when the will was received, dictated, written and signed, continuously; and the act does not show who were the three witnesses.
“10. The act does not make proof by itself of a strict compliance with all the legal requisites, but does show on its face all of said illegalities.
“11. All the legal requisites wore not done at one time, without interruption and without turning aside to other acts, and such formalities as were observed, were done at different times.”

We will discuss these various objections seriaUm., and in the order foregoing.

I.

Preliminary to the discussion of the merits are the exceptions of George Grover, beneficiary under the mooted will, and two bills of exceptions retained by him, during the trial.

(a.) The exceptions are: First, that the petition contains inconsistent demands, and fails to aver any injury as resulting from the alleged errors in the copy of the will; second, that it is vague, general and indefinite ; third, that is shows no cause of action ; fourth, that the plaintiff must either accept or reject the succession of the deceased, absolutely and unequivocally; and in case she accepts, such acceptance must be with, or without the benefit of an inventory; and she cannot, assume an equivocal position, so “ as to receive, if there is anything to receive, and yet not be liable if there is any liability.”

These exceptions Avere overruled by the judge« quo, and the language of the petition, though somewhat guarded, is sufficient for his so doing. It is that the petitioner “is the sole legal heir of said deceased, (and) that, in so far as she may haA^e any right to do so, (she) accepts the succession of said deceased Avith the benefit of iLwentory,” &c.

This is folloAved by a prayer to the effect that the Avill and its probate be annulled and set aside, and “that petitioner be recognized as the sole legal heir of said deceased, under the benefit of inventory, and, as such, entitled to the entire estate of said deceased, after the payment of debts, if any there be,” &c. .

The object had in view by the petitioner was, doubtless, to preserve the benefit of being liable for the charges and debts of the succession only to the value of the succession effects. R. C. C. 1032,1054.

The code defines “ succession ” to be the transmission of the rights and obligations of the deceased to the heirs. R. C. C. 871.

It is matter of no consequence whether the property exceed the. charges; or the charges exceed the property, or Avhether the deceased left charges without property. R. C. C. 872.

The right of an heir to be discharged from the payment of his ancestor’s debts out of his own property, by abandoning the effects of. his ancestor to Ms creditors; the right of preserving the identity of his own property; as well as the right of claiming out of the ancestor’s succession the debts that are due to him from it — are all valuable rights, and petitioner had the clear legal option to safeguard them as she did, in accepting it.

(ft.) The demands of her petition are all of like tenor, and tend to the same conclusion, the nullitp'- of the will. They do not assail the will for any inherent defects, but are, that it is null for vices of form. They appear to us to be perfectly consistent, and free from ambiguity, and set out a cause of action.

(e.) The defendant’s exceptions are taken to the rulings of the .judge in permitting the plaintiff to restrict the effect of certain written instruments offered in evidence, to a definite purpose; his position being “that the documents must go in for all they are worth as evidence.”

It is elementary that a written instrument is only binding upon parties and persons to it, and'third persons are not estopped from assailing, or contradicting its recitals.

In this instance plaintiff’s claim is that Bridget Murray’s will is null, and she is her sole heir. If it'were true that the plaintiff was bound to offer and file the will “for all it is worth as evidence,” and could not be permitted to restrict the offer to a certain purpose, Unit would be an end of the case; because it is a fundamental rule of evidence that a party is bound by the testimony he places on record in his own behalf.

Plaintiff had the undeniable right to offer the will for the purposes of rem ipsam, as the commencement of proof, and with a view of exhibiting to the court its defects and informalities. If this were not a correct rule of evidence, how could fraud or simulation in written contracts be shown, by parol evidence. We think the judge a quo ruled correctly.

II.

The.judge of the lower court maintained the plaintiff’s first ground of objection to the will, annulled it, and held her to be Bridget Murray’s sole legal heir, and, as such, entitled to bo placed in possession of the property left at her demise.

t From his elaborate and carefully considered opinion, it appears that he rested his conclusions upon what was said on this subject in the Succession of Vollmer, 40 Ann. 597, and Weick vs. Heine, 41 Ann. —, and tíre various authorities therein cited.

Tlie gravamen of the judge’s opinion is contained, in the following paragraph, viz:

“ In this case, the legal capacity of the three witnesses named, appears only from the declaration of the notary, the witness hereto * * residing in this city, and of lawful age. It is true the names Reuben, Joseph, and William indicate males, but there is nothing to indicate their age as being over sixteen years, or that they are not insane, or deaf, or dumb, or blind; or that they are capable of exercising civil functions, unless we accept, as such indication, the declaration of the notary that they reside in this city, and are of lawful age.
“ Under the decisions above quoted, the notary is not the judge as to these requirements, and, on the pain of nullity, it was his duty to mention explicitly the qualifications of the witnesses, in order that same might be determined by the court in the probate and execution of the will. Age and residence are only two of the seven qualifications required by law for nuncupative testaments, and nothing can be left to inference, or proof tie hors the face of the will itself.”

As a foundation on which to rest this proposition, the judge previously announced the opinion that “the nuncupative will by public act, must make, of itself and on its face, full proof that every requirement of the law for the execution of testaments in this form, has.been complied with.

“One of the requirements of the law is that the three witnesses, in whose presence the will must be received and executed, and who must sign the act, shall hare the, legal capaellg defined in Ji. O. G. 1591, * * 1592 and 1594.”

We are of the opinion that our learned brother of the lower court has mistaken the true import of R. C. O. 1591, el seqnenies.

In Vollmer’s Succession anle, we said of the testament under consideration — which was in nuncupative form, ly public act:

“ The charge against it is, that it does not set forth that the three witnesses are residents of the parish of Orleans, but that they are competent witnesses.
“ The omission is fatal. The notary is required, under pain of nullity of the aat, to express specifically every material fact constituting the competency of himself, and of the officiating witnesses, under the law, in that respect, and also of every formallity observed in the execution of the will. The not must make full proof, on its face, of every element necessary to its validity, as no evidence is admissible to supply any deficiency.”

The language in which that opinion is couched is carefully selected, and pertinent to the question under consideration, and it was, whether the will was valid in that particular form-, for, though it might have been invalid as a nuncupative testament received by public- act, it might have been validin some other form. R. C. C. 1590.

As it was a question of form, only, we must look to the articles of the Code which prescribe the essential formalities for this particular kind of testament. Now we find in Article 1578 this declaration :

“ The nuncupative testaments by public act, must be received by a notary public, in the presence of three- witnesses residing in the place where the will is executed, or of five witnesses not residing in the place.
“ This testament must be dictated by the testator, and written by the notary, as it is dictated.
“ It must then be read in the presence of the witnesses.
“ Express mention is made of the whole, observing that all those- formalities, must be fulfilled at one time, without interruption, and without turning aside to other acts.” R. C. C.

The guarded language of, our opinion in Yollmer’s succession, was aptly chosen, and properly limited to the question of the special qualification of witnesses to a nuncupative testament by public act, on the score of their residence in the place where same was executed, that being the only one involved in that case. Hence we said that the notary is required “ to express specifically every material fact constituting the competency of himself, and of the officiating witnesses under the law, in- that respect, and, also, every formality observed in the execution of the will.” (Italics are ours.)

There is no other formality in the execution of a nuncupative will by public act, than those enumerated in R. G. C. 1578.

In Weicke vs. Heine, we merely quoted what was said on this subject in Yollmer’s succession, with approval, without announcing anything new or additional; for that .was a similar case.

It will be observed that the articles of the Code succeeding 1580 treat of nuncupative testament under private signature, the mystic or sealed testament, and the olographic testament, and designate the requisites of each.

They are followed by articles containing general provisions which are applicable alike to all. Among this number is article 1591, which declares that certain designated persons “are absolutely incapable of being-witnesses to testaments ” — not to the nuncupative testament by public act, alone, but to testaments, in general.

In this and subsequent articles the plural noun “ testaments,” is employed in a generic sense, to indicate the applicability of the principle to all; and tlie provisions of article 1595 must be so construed, for it declares that “the formalities to which testaments are subject by the provisions of the present section must be observed, otherwise the testaments are null and void.”

We think it erroneous to conclude, therefrom, that, in order to be valid, a nuncupative testament received by public act, should circumstantially recite full compliance, with all the formalities that are prescribed iu that section; on the contrary, we think such a testament would be, utterly, null and void, if it did recite them all. For instance, article 1588 provides, that the olographic testament, “in order to be valid, must be entirely written, dated and signed by the testator.”

That is one of the formalities to which testaments are subject by the provisions of that section, yet it is completely at variance with those required for the validity of nuncupative testaments received by public act, which are likewise provided by that section.

This is sufficient to show that article 1595 employs the word “testaments ” in its generic sense, and that the law-giver intended it should convey the idea, that the several formalities which are required in the confection of different testaments, must be observed therein respectively, and -not collectively.

Article 1591 is in the same category, and it is clear to our minds that if does not specify any formality to which testaments are subject, but simply declares what persons are absolutely incapable of being witnesses to testaments, in general. If this article has received a proper interpretation at'the hands of our learned brother of the lower court, the law has entailed upon notaries a great hardship — the performance, indeed, of an utter impossibility — iu requiring that, on pain of nullity, they shall specifically state, in acts executed by them, all the facts which tend to negative the disqualifications of witnesses mentioned in that article. For, how could a notary know that a witness was more or less than sixteen years of age; or was so deaf, dumb, blind or insane, that he was incapable of being a witness to a testament ? By what means could he determine; what persons are disqualified by the criminal law from exercising civil functions ?

Such an interpretation was certainly not intended by our opinion in Yollmer’s Succession. When it said that “ the notary is required, under pain of nullity of the act, to express specifically every material fact constituting the competency * *' of the officiating witnesses, under the law, in that respect,” it was not intended to convoy the idea, that it was the duty of the notary to state “ every material fact ” constituting their competency in every respect; or that he should state every material fact” necessary to negative their disqualification in every respect.

Suffice it to say, broadly, that the law does not make it the duty of notaries to state the qualifications of witnesses in tire sense of R. C. C. 1591; but it does make it their duty to state their qualifications in the sense of R. C. C. 1578.

III.

The recitals of the will are as follows, viz.: “ And the undersigned notary did write it” — the will — “ down, as dictated l)y said testatrix, in presence of said witnesses.” This statement fully answers plaintiff's second charge, and satisfies the law in this regard.

IV.

The recitals of the will are further to the effect that “ lecture of said will, as dictated and written, having been given hy the undersigned notary, in a loud and intelligible voice, to the said testatrix, in the presence of said witnesses,” etc,; and they answer the third charge, and likewise satisfy the law. The word “ lecture ” is to be understood in the sense of reading. That is file English of it.

V.

The will further recites that “ the whole was dono. * * in the presence of said witnesses, who have signed their names, with said testatrix, and me, said notary.” This recital sufficiently answers the plaintiff’s fourth charge, and, also, the law.

VI.

The plaintiff’s fifth charge against the will is, that it is signed hy Mary Grover, as testatrix, whilst the body of the act states'the testatrix to be Jiridyet Murray, wife of Georye Grorer, air entirely different, person, to all appearances.

The act states that, “ I, Alphonse Barnett., a notary public, did, at the request of Jiridyet Murray, wife of Georye Grorer, proceed to her residence * * where L found the said Mrs. Grorer * as slit appeared to me, notary, and the witnesses, * * and she requested me, notary, to receive her last will and testament as follows, to-wit: M,y name is Bridget. Murray * * I give and bequeath to my husband, Georye Grover, the whole of my property * T appoint said husband, George Grover, my testamentary executor, etc.”

From the foregoing recitals it is clear that “ Jiridyet Murray, wife of Georye Grorer, and Mrs. Grover,” are one and the same person. Then we have “ Jiridyet Murray” for the maiden name of the testatrix, and Grover, the name of her husband. But the original act shows the interlineation of the name “ Mary ” before “ Bridget,” and the sentence made to read thus : “ My name is Mary Bridget Murray,” or Mary Bridget Grover, she being the wife of George Grover. Now, it may be perfectly true that the testatrix, at first, dictated her name as “Bridget Murray, wife of George Grover,” yet when it was read to her in the presence of the witnesses, she, doubtless, invited the notary’s attention to the fact that her full maiden name was Mary Bridget Murray; and, in affixing her signature to the act, she, doubtless, appended that of “ Mary Grover,” as the one by her most used during her married life, instead of her maiden name. In full confirmation of that fact, we find it stated in the body of the will, and immediately over the signature, “ Mary Grover,” these words, viz.: “ The name Mary interlined, also, appended before signing.” We do not think there is any reasonable doubt of the fact that “ Bridget Murray, wife of George Grover,” “ Mrs. Grover,” “ Mary Bridget Murray,” and “ Mary Grover,” are the names of one and the same person..

This objection of plaintiff is not good.

VII.

The charge that the interlineation of the word Mary, before the word Bridget, on the first page of the act, was made after the signing and conclusion of the will is not borne out by a close inspection of the will, which is before us in the original. Preceding the commencement of the clause of the will, viz.: “ My name is, etc.,” there is an entire line left blank, and, in this space, the name “ Mary ” is clearly and distinctly written, and it does not bear the appearance suggested.

VIII.

The charge that the erasure of the name Robert, and the interlineation of the name Reuben, were not approved by the testatrix, and show two different persons, who appeared at different times, and of whom only one has signed his name is not borne out by the record.

In the beginning of the act the notary states that Mrs. Grover appeared to him “and the witnesses hereinafter named and undersigned;” and, at the conclusion, their names appear to have been originally stated to be “Robert T. Wheeler, Joseph Paillet and William S. Mackeybut the name Robert, in the original act apprears to have been subsequently erased and that of Reuben interlined. After stating the names and resideuce of the witnesses,^ but before the signatures of the testatrix and witnesses, we find this announcement, viz.:

“ The name of Robert erased and that of Reuben interlined, appd. before signing', the name of Mari/ interlined, also appd. before signing.” This affirmative declaration that this erasure and interlineation occurred before the signing is conclusive proof that the subsequent affixing of the testatrix’ signature to the will is an approval of it. Independent of the written declaration of the fact, the subsequent signing is a conclusive evidence of her approval.

IX. AND X.

These two charges are substantially embraced in and discussed under different, preceding paragraphs. The significance of these objections is that, in plaintiff’s view, the three witnesses who signed the act are not the same three witnesses who are mentioned in the act. 'i'his is merely a verbal criticism, or play on words, growing out of the erasure of the name Robert and the substitution and interlineation of Reuben therefor.

They are without merit.

XI.

The final charge is that all the legal requisites were not done at one time, and without turning aside to other acts.

It is a sacramental requirement of the notary that he shall make “express mention * * of the whole,” but not that he shall declare thut all those formalities had been “fulfilled at one time, and without turning aside to other acts.” R. C. C. 1578. His failure to make such a declaration in the will, is not a ground of nullity. 7 La., 599; 12 R. 639. That article only refers to the formalities which are therein mentioned. All of those formalities seem to have been fulfilled at one and the same time; and the act furnishes no proof that he turned aside to other acts. There is no evidence of his having- prepared any other act. This charge must share the fate of its predecessors.

A consciencious and pains-taking examination of the law and evidence appertaining to this case, has brought us to the conclusion that the judgment appealed from is erroneous and should be reversed.

It is therefore ordered and decreed, that the judgment appealed from be and the same is annulled and reversed; and it is now ordered and decreed that the demands of plaintiff and appellee be rejected at her cost in both courts.


text:
    No. 10,392.
    Thomas P. Leathers vs. John Janney et als.
    1. jSTo law prevents a corporation from selling any or all of its property, provided the charter contains no prohibition thereof and it acts in accordance with the duly expressed will of its stockholders and directors.
    2. Tbe same person may fill the offices of President of two distinct corporations and such • identity does not, of itself', invalidate dealings between the two corporations.
    H. When one corporation sells property to another for a fixed price, to be paid in stock of the latter to be delivered to the former through its designated officer, delivery of tho certificates of stock to such officer or to another by lus order, operates a discharge for the price.
    f. Corporate property is held subject to corporate debts, and when a corporation sells its whole property and rights to a purchaser knowing the fact, equity, in proper cases, will subject the property in the hands of the purchaser to the payment of the debts with which it is charged; but the purchaser of specific property, such as a steamboat, from a corporation, is not bound to follow tbe price paid into the hands of the selling corporal ion, and see to its distribution amongst the latter’s stockholders, in absence of fraudulent connivance between the purchaser and seller to wrong the stockholders.
    Ó. The sale attacked in this case being real and fair, tor a sound price duly paid to the seller according to tho terms of the contract, and without a shadow of fraud on tin* part, of the purchaser, the latter is not bound for any failure of duty of the officers of the selling corporation in distributing the proceeds amongst its stockholders.
    APPEAL from the Civil District Court, for tho Parish of Orleans. Jlujliior, J.

      O. JB. Sa/nsvm for Plaintiff and Appellant:
    Shares of the capital stock of a corporation pledged to seoprc a bona fide debt, fix a corporate liability in favor of the pledgee, and an unlawful transfer thereof is a breach of corporate duty, for which the corporation is liable.
    Corporations hold all their property, effects and assets in trust for their creditors and shareholders. All such assets, property and effects are to be devoted first, in payment, of corporate debts and liabilities; and if, after satisfying debts and liabilities, there he a residue, it belongs to the shareholders.
    Holders of the capital stock of a corporation can take no part of corporate assets unt.il (‘very corporate debt and liability has been paid and satisfied ; and, if this rulo be disregarded, creditors may follow the corporate property, or its proceeds, wherever found, and subject them to the payment of corporate debts and liabilities, unless they be in the hands of bona fide purchasers for a fair and reasonable consideration.
    While it is true the plaintiff holds the affirmative of every issue of fact and must, support them by a preponderance of testimony, yet, in determining whether plaintiff’s testimony overbalances the defendant’s, upon such an issue, the Court must regard all the circumstances surrounding both parties, and if the Court is satisfied that one of rho. parties in dealing with the other has been guilty of great moral turpitude, the Court will declare in favor of the party whose conduct appears to have been governed by integrity

      Tiichard De Gray on same side :
    <• A corporation is the custodian and trustee of the corporate funds, property and slock for the stockholders; it is bound to employ competent and faithful transfer agents (and officers) to their injury. In case of illegal and unauthorized transfer of stock to a third person, the injured stockholder may contest the title of the transferee, contradictorily with both the latter and the corporation; but he is not confined to this remedy. It has been frequently held that ho may sue the corporation, alone for the value of his stock illegally transferred.” 35 Ann. 238.
    Pledges of stock are good by the mere delivery of the certificates, and such mere delivery interdicts the corporation from transferring the stock on the books of tbo company, except upon the surrender of the certificate, or upon proof of its loss or destruction. Ko notice of the transfer is necessary. 30 Ann. 1378; 31 Ann. 151; 33 Ann. 1286.
    It is the duty of the company to have the surrender of the old certificate before the re-issuance and delivery of the new certificate. If the old certificate is not produced, an inquiry should he instituted as to its whereabouts; and “where it is their duty to inquire, the party is charged with full knowledge |of all which he would have discovered had he performed that duty.” 17 "Wallace, p. 8.
    Stock in a corporation is not in the nature of commercial paper, but the right to the same is rather in the nature of a non-negotiahle chose in action. 96 IT. S. It., p. 190.
    Fcwrar, Jonas & Fruttschnitt for Defendants and Appellees :
    1. If plaintiff’s action is anything known to the law of Louisiana it is the revocatory action or Actio Pcmliana. As such it is prescribed by one year. C. C., Article 1994; Byrne & Co. vs. Creditors, 33 Ann. 198; Brewer vs. Kelly, Administratrix, 24 Ann. 246.
    2. Destruction of the thing which is the object of the action by a fortuitous event relieves the defendant of the result of the action.
    3. Insurance on the thing does not represent the thing or follow the thing. It is a contract of indemnity personal to the insurer. King vs. Preston, 11 Ann. 95.
    4. The evidence shows (a) that the defendants were guilty of no fraud, expressed or implied; (b) that Leathers must have had knowledge of this whole transaction at tlio time it was made; (c) that the Planters’ and Merchants’ Packet Company being without knowledge of Leathers’ alleged rights, owed him no duty, expressed or implied.
   The opinion of the Court was delivered by

Fenner, J.

Prior to June, 1885, there existed three distinct corporporations, viz: the New Orleans, Baton Rouge and Bayou Sara Packet Company, the Merchants’ and Planters’ Packet Company, and the Coast and Mississippi River Packet Company, each of which owned and operated a steamboat.

Desiring to put an ond to disastrous competition, the stockholders in these three corporations, agreed to form anew corporation which should acquire the ownership of all three boats at valuations fixed in advance and run them in a common interest.

Accordingly on June 22, 1885, a new corporation was formed in accordance with the laws of the State, styled- the Planters’ and Merchants Packet Company, having a stock equal to the combined valuation of tbe three boats above mentioned, viz: $110,000 in shares of $100 each, and its objects are declared to be “tlie building, running, purchasing, chartering, hiring, running and selling one or more steamboats, etc.”

On June 30, 1885, at a special meeting of the stockholders and directors of the Now Orleans, Baton Rouge and Bayou Sara Packet Company, a resolution was adopted authorizing John J. Brown, manager, to sell the steamboat Ed. J. Gay to the Planters’ and Merchants’ Packet Company, for the sum of fifty thousand dollars in full paid up stock of said company.

On the same day, in pursuance of above resolution, Brown, Manager, executed a deed of sale of the Gay to the Planters’ and Merchants’ Company, upon the consideration, by him declared in the act, “ of fifty thousand dollars in full paid stock of the Planters’ and Merchants’ Packet Compañía to represent which stock the said company have issued and delivered to me on behalf of said New Orleans, Baton Rouge and Bayou Sara Packet Company, certificates for 5U0 shares of the amount of $100 each of said capital stock paid up, the receipt of which I do hereby acknowledge, etc.”

John Janney, the defendant, was a stockholder in the New Orleans, Baton Rouge and Bayou Sara Packet Company, and in 1884 had delivered to Thomas P. Leathers, to whom he was indebted, the certificate for 120 shares of said stock, in pledge.

The stock received from the Planters’ and Merchants’ Company in payment for the Ed. J. Gay, was distributed among the stockholders of the New Orleans, Baton Rouge and Bayou Sara Packet Company, by Brown, or under his direction, and Janney received the whole amount thereof coming to him, without being required to produce the certificate held in pledge by Leathers.

Brown was the manager of the Now Orleans, Baton Rouge and Bayou Sara Packet Company, and was also chosen as manager of the new company.

The plaintiff filed the petition in this suit against John Janney, the New Orleans, Baton Rouge and Bayou Sara Packet Company and the Planters’ and Merchants’ Packet Company. Tins petition first sets forth the indebtedness of Janney and the jiledge of the stock, and then sets up that Brown was president and manager of the New Orleans, Baton Rouge and Bayou Sara Packet Company, and that ho was also president and manager of the Planters’ and Merchants’ Packet Company.

That, June 30th, 1885, Brown, as the manager of the New Orleans, Baton Rouge and Bayou Sara Packet Company, pretended to convey and sell all the property of that corporation, to wit: the steamer Ed ward J. Gay, to the Planters’ and Merchants’ Packet Company for 50,000 shares of the capital stock of the last named company, and that nothing was in fact paid by the latter to the former corporation.

That Brown being at the same time manager and president of both corporations, acted in the double capacity of seller for the one and buyer for the other corporation (10).

That the New Orleans, Baton Rouge and Bayou Sara Packet Company had no property but the steamer .Edward J. Gay; and the sale thereof was ultra vires and void, and that it was a fraud against plaintiff’s rights in the premises (11).

The petition prays citations against all the defendants and judgment against Janney for $4350 83, with interest from September 8th, 1886, and for a lien and privilege on the steamboat and a lien and privelege on all the property of the Planters’ and Merchants’ Packet Company, and that the same be seized and sold to pay plantiff’s demand, interest and costs, unless property of the defendant Janney be found to satisfy the demand, and for general relief (12).

The plaintiff recovered a judgment against Janney with lien and privilege on 120 shares of the stock of the New Orleans, Baton Rouge and Bayou Sara Packet Company, but was denied other relief, from which judgment lie appeals.

Let us examine the grounds as set forth in the petition on which the claim against the Planters’ and Merchants’ Company and its property is based. They are:

1. That the sale of the Gay was pretended and fictitious. The sale was real, for a valuable consideration of amply sufficiency and duly 'paid, and the charge is simply frivolous.

2. That Brown was the manager of both the corporations which were parties to the sale. As he acted under full authority from the directors and stockholders of each corporation, we perceive no legal significance in this fact and no principle of law or authority is cited to give it any force whatever.

3. That the sale was of the whole property of the selling corporation and was, therefore, ultra vires and void. The inference does not follow from the predicate. There is no law prohibiting a corporation from selling any or all of its property provided its charter contains no restraint thereof and it acts under proper authority.

4. That the sale was made in fraud of plaintiff’s rights.

The evidence conclusively shows that the sale was, in itself, as honest and fair a transaction as ever took place. Nobody connected with it, with the exception of Janney, had notice or knew in any way of the pledge of Janney’s stock to Leathers. The sale was public and notorious, commented on in the newspapers, and evidenced by the conspicuous inscription of the new corporation’s name upon the wheel-houses of the steamboats purchased. The purchaser exacted from the selling corporations an indemnifying bond against all debts, which was given, and it is not pretended that the New Orleans, Baton Rouge and Bayou Sara Packet Company has not paid every one of its corporate debts.

Before the sale, Janney himself, had consulted his then friend, the plaintiff, about the transaction and the valuations placed on the different boats, which is admitted by plaintiff, though he says he did not understand that there was to be a sale to a new corporation. We are satisfied that no notion existed even in the mind of Janney of wronging plaintiff or prejudicing his pledge, until some time after the eonsumma tion of the sale. He did not apply for or receive the shares of new stock coming to him until several months after the sale had been consummated.

In concealing the fact of the pledge and in talcing the stock without providing for the protection of Captain Leather’s rights, he, no doubt, committed a wrong. It may be claimed that in permitting and directing the delivery of the new stock to Janney without exacting the surrender of the old certificate, Brown, and the New Orleans, Baton Rouge and Bayou Sara Packet Company, incurred liability to Leathers; but no judgment appropriate to this liability is claimed in this suit, and the judgment appealed from specially reserves the rights of Leathers against them.

But what responsibility in the premises attached to the Planters’ and Merchants’ Packet Company? It had bought the boat, in good faith, for the price of so many shares of its own stock, certificates of which were to be delivered to Brown as manager and representative of the selling corporation, receipt of which certificates was actually acknowledged in the act. If the certificates had been then delivered as so recited, no one would have had the hardihood to contend that the buying corporation would have had any further concern with their disposition.

Although it appears that the certificates had not been delivered, yet, after the sale, the stock stood as the property of the selling corporation, certificates for which were to be delivered, on demand, to Brown, as its manager, or to whomsoever he might direct. When such delivery was made, the obligation of the buying company was discharged.

The receipt of the stock by Janney under the authority of Brown was the same as the receipt by Brown, manager of the selling company, to whom the contract required they should be delivered. In so disposing of the certificates, Brown acted solely in his capacity as manager of the selling company, which was the owner of the stock, and the buying company is, in no manner, affected by any failure on his part in his duty towards the stockholders of the selling company, with whom the former had no dealings,and as to whom it was under no duty.

Authorities are quoted to the effect that when a corporation sells or transfers its entire property to a purchaser knowing the fact, the latter is chargeable with knowledge that the property is subject to the corporate debts and that equity will, in proper cases, allow the corporate creditors to follow the property in the hands of the purchaser for satisfaction of their claims. Mumma vs. Potomac, 8 Peters 281; Dammer vs. Wood, 2 Mason 381; St. Mary’s Bank vs. St. John, 25 Ala. 566; Hackabee vs. Smith, 53 Ala. 191; Wood vs. Dammer, 3 Mass. 308; Vose vs. Grant, 15 id. 592; Story’s Eq. Jur., 9 Ed. Section 1252.

But no authority is quoted or esists, to the effect that the purchaser from a corporation is bound to follow the price into the hands of the seller and see to the just and proper distribution of it amongst the latter’s stockholders. In absence of fraudulent connivance or collusion to wrong the stockholders, the purchaser discharges his obligation by paying the price to the competent officers of the selling corporation who are the agents of the stockholders and to whom the latter must look for the protection of their rights.

The case of Fee vs. Gas Co., 35 Ann. 238, has no application whatever to the questions here involved.

Wo, therefore, conclude that the plaintiff has no rights against the Planters’ and Merchants’ Packet Company or upon its property.

A violent conflict is found in the evidence as to' the amount of the debt for which the stock of Janney was pledged. It is a simple case of direct and positive contradiction between witnesses on which the conclusion of the district judge should not be lightly disturbed. After carefully weighing the evidence we And no sufficient ground to disturb it; in so far as it confines the pledge to the amount due on the note.

The amendments asked in favor of Janney are supported only by inferential evidence, and as we think the judgment does substantial justice, we will leave it as it stands.

Judgment affirmed.