text:
    No. 13,382.
    Willis Curl vs. J. L. Bond, Sheriff, et als.
    Syllabus.
    Proof that an agent in possession and use of the property of his principal, has held himself out to the public as the owner of same in such manner as to induce credit to be given him, can not prevail against the true owner, who is not shown to have either superinduced the agent’s course of conduct, or to have clearly and unequivocally acquiesced therein.
    APPEAL from the Third Judicial District, Parish of Lincoln.— Barksdale, J.

      IIoTberi & Barret for Plaintiff, Appellant.

      J. B. Ilalsiead for C. P. Cooper, Defendant, Appellee.
   The opinion of the court was delivered by

Watkins, J.

This is a proceeding by third opposition in which the plaintiff claims the ownership of certain property in the hands of the defendant, sheriff, and resists the seizure and sale thereof — same having been seized under an execution which issued under a judgment in the suit entitled C. P. Cooper vs. S. A. Cameron in the Parish of Lincoln, and as the property of the defendant therein.

To this opposition, the sheriff who held the writ under which the property was seized,, and, also, the plaintiff and defendant in execution, were made parties.

Cameron having made a conveyance to one Andom, of the Parish of Caddo, of an undivided half interest, or share in the property, and he, in turn, having made a conveyance of same interest to the Merchants and Farmers Bank of Shreveport, of same parish, as a collateral security for his (Andom’s) account, both Andom and the bank were made parties defendant, also.

Cooper, originally, had the whole of the property seized; but subsequently restricted his seizure to that undivided half interest which was not embraced in Cameron’s sale to Andom, and in Andom’s conveyance to the bank.

To these' proceedings, the bank took exception, on the ground that the court of Lincoln Parish had not, and should not exercise jurisdiction over it, rations materiae, it being confessedly domiciled in the Parish of Caddo.

The judge a quo, entertaining the opinion that the property seized was an immovable by destination, overruled the exception, and entertained jurisdiction of the case.

Subsequently, defendant, Cooper, requested a severance of trial, ,and same having been accorded to him, the case went to trial before the district judge, and it resulted in a judgment of non-suit in respect to the plaintiff’s demand to be decreed the owner of the undivided half interest in the cotton compresses, together with the engine, boilers, belting, shafting and machinery, thereto attached, which were seized, and in all other respects in a final judgment, rejecting his demands in toto.

It is from that judgment that the plaintiff prosecuted the present appeal — the bank not being a participant in the trial its rights in the premises were not passed upon by the judge, and its counsel has filed no brief in this court.

The defendant and appellee, Cooper, has filed an answer to the appeal, and requested an amendment of the decree appealed from, so as to entirely reject and disallow the demands of the plaintiff and appellant.

The judgment rendered in favor of Cooper against Cameron, under which execution issued, is for a small sum, and founded on a note of Cameron which he acquired from a third person as his debtor, and for whose account he holds the same as a collateral spcurity.

An attentive examination and study of the record and the argument of counsel, has given us the impression that the defendants do not seriously question the reality and validity of the plaintiff’s title to the compress, and its fixtures and appurtenances; but that, on the other hand, their contention is, that conceding arguendo the plaintiff’s ownership, he has permitted the defendant, Cameron, to exercise rights of ownership over the property, and to hold himself out to the public as owner in such manner, as to give him credit upon the faith of same, and that he is equitably barred and estopped from asserting his (Curl’s) ownership to their prejudice — and particularly with reference to Cooper as a judgment and seizing creditor.

The claim of the plaintiff as stated in his petition is, that he is a resident of Sumter County, State of Alabama, and is the lawful owner of a certain cotton compress, now situated in the city of Ruston, Lincoln Parish, Louisiana, consisting of engines, boilers, compress, and all machinery and improvements attached thereto, composing and constituting the said cotton compress. That he acquired all of said property, except the cotton shed, warehouse, building, etc., at a foreclosure sale and proceeding against the York • Manufacturing and Compress Company, as will more fully appear by a sheriff’s deed of said property of date — day, 1896.

The petition further states that he is the owner of the warehouse, cotton shed, cotton platform, and all of the buildings and improvements belonging to or pertaining to said compress; and that he acquired the said warehouse, cotton platform, etc., by virtue of having paid for all of said improvements out of the earnings of his said press, during the season of 1897 and 1898.

Further, that he is the owner of, and acquired in the same way, a certain contract of lease transferred by E.Whiteman to S. A. Cameron in block'“Q” in the town of Ruston, Louisiana, together with the im-. provements thereon, according to the map and survey of said town on which the said compress property now stands, as shown by the conveyance records of the said parish.

The petition then relates the circumstances of the property having been seized under an execution which issued in the case of C. P. Cooper vs. S. A. Cameron—as has been heretofore detailed.

The petition then alleges that S. A. Cameron has no interest whatever in the property seized, and that same can not be sold to pay his debts.

It further alleges, that he is unable to give an injunction bond to stop the sale cf his property, and that he has, through an attorney, made affidavit, that he was and is the bona fide owner of said property; and in said affidavit fully set forth the facts on which his title and ownership to said property is based, and that he, subsequently, called the attention of the sheriff to said affidavit, and filed the same among the archives of the Parish of Lincoln. •

The petition further alleges, that he has recently, and within the last month, prior to the filing of the petition, “learned that the said S. A. Cameron had pretended to sell a half interest in petitioner’s property, to-wit: The said compress, buildings and appurtenances thereto, and hereinbefore described, to one E. S. Andom, a resident of Shreveport, for the stipulated price of $12,500, as is shown by a deed to that effect recorded in the conveyance records of Lincoln Parish; and that the said Andom a day or so after his said purchase from Cameron, made a pretended sale of the same property to the Merchants and Farmers Bank of Shreveport,” for a like price of $12,500, “as is shown by a deed to that effect, duly recorded in conveyance records of Lincoln Parish.”

It further represents, that the said Cameron had no right or authority to sell petitioner’s property, the property herein described. That the pretended sale to Andom did not vest ownership in him, and gave him no title whatever to the said property; and the sáid Andom having no title to the said property, could not convey any title to the said bank.

That the said sale by Cameron to Andom, and like sale by Andom to the bank, are absolute nullities, and convey no title whatever, as far as petitioner in concerned.

Tour petitioner avers, that said Andom has not paid anything at all on the said property, and neither has the bank paid anything to said Andom for the said property.

That the recitals in both of said deeds, above referred to, to the effect that the $12,500 was paid, and the receipt of which is acknowledged, is erroneous, false and untrue, and fraudulent, and said recitals do not conform to the true facts.

That the said Andom did not pay a dollar of the said pretended price, but gave his notes to the said Cameron, one for six thousand dollars, payable in twelve months from date, and one for fiifteen hundred dollars, payable-day after date, which notes are still unpaid, and at this time, in the possession of the said Cameron; and that the said bank knew at the time of the existence of said note? when they pretended to buy said property from Andom; and that the said bank did not pay the said Andom at the date of the said pretended sale from Andom to the bank, a dollar in money or otherwise.

That “the bank simply holds the said property as collateral for Andom’s debts to said bank, and it was not (?) the intention of the said bank to pay Andom for the said property.”

The prayer of the petition conforms to the foregoing- averments; and appropriate relief is demanded.

An examination of the record discloses that the plaintiff did become the purchaser of the cotton compress and its appurtenances, at a judicial sale made in the State of Alabama, in regular foreclosure proceedings therein; and that his title was duly executed and recorded, conformably to the Alabama law.

That, thereby, Curl became the absolute owner of the property at the foreclosure sale.

The proof shows that the cotton compress and appurtenances which were purchased by the plaintiff, were removed from York Station, Alabama, to Ruston, Louisiana, in the latter part of the summer of 1897.

The testimony shows that the plaintiff is a resident of York Station, Alabama, and had the cotton compresses and appurtenances in his possession as owner at that place.

That Cameron is his son-in-law, and had visited Ruston, Louisiana, and ascertained that a cotton compress was much needed there; it being- a place where a large quantity of cotton was bought and sold.

That regarding it as a favorable location for the compress, he prevailed on the plaintiff to have it removed to Ruston, Louisiana, and that the people of Ruston would advance twenty-five hundred dollars to pay for the removal and erection of the said press at Ruston, Louisiana, for operation; and that they would pay the plaintiff five hundred dollars out of the advances to be thus made, if he would agree for his press to be moved to that point, and would agree that the property be pledged to the people of Ruston for the twenty-five hundred dollars to be thus advanced.

The evidence shows further that communications were carried on between the plaintiff and citizens of Ruston; and that the latter agreed to advance the money required and take a pledge of the property as security; and that said advances were to be paid back out of the net earnings of the compress, and when said earnings were paid, the property was to be restored to the plaintiff.

The evidence further shows that in pursuance of this understanding, a document was executed, of the following tenor:

“This is to certify, that I hereby give S. A. Cameron the right to “ pledge my compress to the citizens of Ruston, Louisiana, for twenty- “ five hundred (2,500) dollars, to defray the expenses of moving said “press from York, Alabama, to Ruston, Louisiana, with the under- “ standing I am to receive five hundred ($500) dollars of this pledge “money for an advance of the earnings of my press. They are to “take good care of the property and turn it over to me free from “ any debt.

“This August 5th, 1897.

“Witness:

“Leila Cameron.

“Willis Curl,

“S. A. Cameron.”

The evidence shows that the compress was, accordingly, removed from York, Alabama, to Ruston, Louisiana, and was there erected for operation by the citizens of Ruston.

The purport of the statements of both the plaintiff and Cameron is, that the removal of the press from Alabama, and its subsequent establishment in Rouston, Louisiana, were in pursuance of the foregoing written document; and that Cameron as-the agent of the plaintiff, superintended the removal of the press, its subsequent establishment at Ruston, and its subsequent operations — it being operated while under a pledge to the Ruston bank, in the name of the Ruston Compress Company. Both the plaintiff and Cameron agree that the latter had no authority, except as conveyed to him in that document, to pledge the press.

It appears from the record that subsequent to the establishment of the press at Ruston, Louisiana, Cameron gave the press in pledge to the Ruston Bank, to secure a pledged note of twenty-five hundred dollars; and their contention is, that the pledge was made in pursuance of the foregoing written order.

The testimony, in our opinion, very clearly shows, that the plaintiff knew nothing of Cameron having conveyed a half interest in the property to Andom, or of Andom’s conveyance to the hank.

The truth of the matter is, that plaintiff was notified by Cameron of Cooper’s seizure, and that he immediately took steps to recover the half interest in the property sold, and to resist Cooper’s seizure of the remaining half.

There is testimony in the record to the effect, that many people in Ruston had understood and believed that Cameron was owner of the press and of the property, judging from appearances and from the actions and conduct of Cameron; but at the same time there is no substantial proof in the record which satisfies our minds that the plaintiff was aware of Cameron having so acted and treated the property as his own, so as to conclude the plaintiff from the present assertion of his legal rights. It is certain that the plaintiff did not, himself, so act as to influence the public to give Cameron credit upon the faith of his alleged or assumed ownership of the property; and to defeat his rights, he must have so acted, as to have influenced the public to so believe.

From the evidence it appears that Cooper was never a creditor of Cameron; and that there were no financial dealings between them. It also appears, that Cameron having become indebted to a third person for the purchase price of property he had bought on time, and for which he gave his notes payable at a future date, one of those was assigned to Cooper as collateral security, only; and upon this he brought suit against Cameron at maturity.

On this state of facts, it is perfectly clear, that there were no such equities in favor of Cooper as against Cameron and Curl, as defendant’s counsel contend for; for, if Cooper did act on the belief that Cameron was owner of the compress, it influenced him only to voluntarily acquire his paper from a third person, and without the knowledge of Cameron.

The district judge, in the course of his written opinion, in which he assigned the reasons for his judgment, makes this statement:

“Curl and Cameron both swear most positively, that the former has not sold the property to the latter. It is as certain as can be that Cameron brought the property from York Station to (Ruston) with the consent of Curl.

“It is equally as plain to me that this was done under some kind of an agreement between Curl and Cameron, or between Curl and Mrs. Cameron, who is Curl’s daughter.

“Cameron publicly held out the property as his, and operated the business in his own name. The record shows no' enquiry on plaintiff’s part as to how the business called by him to be his own was prospering, or as to whether or not the advance is being'paid — the advance for which he alleges his property to have been pledged. It does not appear that Cameron made any report of his gestión of Mr. Curl’s affairs — his compress business- — until the fall of 1898, at least one year after the business began, and after he had sold one-half interest to Andom.”

After reciting much of the evidence, the judge concludes his opinion with the statement that the “plaintiff’s evidence, or rather the evidence in this case, fails to satisfy me that plaintiff owns the compress and machinery claimed to have been brought from Alabama by Cameron.”

But then, he takes the precaution to observe that “as some óf my conclusions may be wrong- as to plaintiff’s title to this property, as to his knowledge of Cameron’s running the property in his name, I shall only non-suit this part of the demand; i. e., as to the property claimed to have been bought at the foreclosure sale in Alabama.”

He thereupon dismisses that claim as of non-suit.

Our examination of the record has led us to a different conclusion as to this part of the case. The original deed to the property is in evidence, as well as the laws of Alabama appertaining thereto; and they show clearly that the plaintiff acquired an apparently valid and legal title to the property.

The written agreement between the plaintiff and Cameron, relative to the removal of the compress from York, Alabama, to Ruston, Louisiana, is also in.evidence; and same is affirmed by the concurrent testimony of the two.

There is in the record no testimony either written or oral, to the effect that Cameron ever acquired any interest in the property. Cameron’s ownership is denied emphatically by both the plaintiff and Cameron. This statement on Cameron’s part, is, of course, inconsistent with his having conveyed an interest in the property to Andom; but it is not inconsistent with the plaintiff’s deed, and other testimony in support of it.

An examination and careful study of the whole case, has led us to the conclusion that the plaintiff acquired the title to the property at judicial sale in Alabama; and that he has not parted with the title thereto at any time since, or to any one; and that he is entitled to a decree recognizing his ownership.

As we have already stated, the claim made on behalf of Cooper, that he and the public had been deceived and induced to extend credit to Cameron on the faith of his alleged, ownership, can not be allowed to prevail against the true owner, who is not shown to have superinduced Cameron’s alleged course of conduct. On the other branch of the case, in reference to the lease of the buildings which are constructed upon the leased property, we are not prepared to differ from our brother of the District Court, but are satisfied to affirm his judgment in that particular.

It is, therefore, ordered and decreed that the judgment appealed from be annulled and reversed in so far as it decrees a non-suit as to plaintiff’s claim of ownership of the cotton press, fixtures and appurtenances; and it is further ordered that the plaintiff be adjudged the owner of the cotton compress, fixtures and appurtenances thereto attached and belonging; and that the seizure thereof by the defendant, Cooper, be decreed illegal and void.

It is further ordered and decreed that the judgment appealed from be, in all other respects affirmed; and that the cost of appeal be taxed against the defendants and appellees.

Rehearing refused.

Blanchard, J., recused.


source: Caselaw Access Project

author: MoNKOE, J.

license: Public Domain

text:
    No. 13,220.
    Henry Bader vs. Southern Pacific Company.
    Syllabus.
    íVhere a passenger, by reason of the mistake of the conductor, in giving him a cheek, is ejected from a train before reaching his destination, he should not increase the damage and can not recover for loss or injury which is not the consequence of the wrong done him, but of his own wilful acts of omission or commission.

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

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

      Denegre, Blair & Denegre for Defendant, Appellant.
   The opinion of the court was delivered by

MoNKOE, J.

Plaintiff claims $5,000 as damages, actual and exemplary, said to have been sustained by reason of his alleged forcible and unlawful ejection from a passenger train.

Defendant pleads the general denial.

We find the following facts to be sustained by a preponderance of evidence and probability, to-wit:

Plaintiff, who was about sixty-three years old, bought a ticket from New Orleans to Lafayette, intending to go from there, by private conveyance, to Breaux Bridge, there, to spend the summer among his family connections and ply his trade of shoemaker. Shortly after the train left New Orleans, the conductor took up his ticket, and placed in his hat a slip, or conductor’s check, which indicated that his destination was Franklin, a station over forty miles short of Lafayette. The plaintiff did not get off at Franklin, and when the train reached Baldwin, four miles farther on, he was notified that he had passed his station; he said that he wanted to go to Lafayette; the conductor replied that he had better get another ticket, and either the conductor, or some other train official, intimated, or told him in words, that he must get off the train. There was, however, very little said. The plaintiff is a man of limited intelligence, and appears to have made no protest or explanation, nor did he insist upon his right to be carried to Lafayette, or offer to pay additional fare. Nor, upon the other hand, was any force, or objectionable language offered to him. After he had left the train, or whilst leaving, he said that he would “claim the case,” meaning that he would make a claim for damages. From Baldwin to New Iberia is twenty miles, from New Iberia to Lafayette nineteen miles, and from Layayette to Breaux Bridge eight miles. Breaux Bridge may, however, be reached by going from Baldwin to New Iberia, from New Iberia to St. Martins-ville, fourteen miles, and from St. Martinsville to Breaux Bridge twelve miles, and the plaintiff selected the latter route, for reasons which wiK appear. He says that he had about seventy cents in his pocket. That amount would have carried him, on the next train, some few miles beyond New Iberia. His story is that he left Baldwin between twelve and one o’clock on Saturday, a little while after his arrival, and walked in the direction of New Iberia; that night overtook him on the way, and he lay down on the railroad track, and went to sleep, and was awakened by a train which came near running- over him, but that he could not tell whether it was running towards New Orleans or in the other direction. He reached New Iberia, and thence passed on to St. Martinsville, the next day. He had lived in St. Martinsville for twenty-five years; had reared a family there, and had a brother-in-law living there, who received him into his house, where he remained during Sunday night. The brother-in-law 'then offered to arrange to get a conveyance to carry him on to Breaux Bridge, but the plaintiff declined the offer, though he says that he was pretty well worn. out. He accordingly started on Monday morning to walk the balance of the way, say about twelve miles, and this distance he claims to have accomplished with much difficulty and suffering, walking the whole distance, with the exception of a half mile, when he was given a ride in a buggy, and the last two miles, over which he rode in a wagon, his feet being so swollen, bruised and inflamed, that he was laid up with them, and, for a month or two, was obliged to wear slippers, or loose shoes.

The evidence leaves no doubt upon our minds that a mistake was made by the conductor, in giving the plaintiff a check which called for Eranldin instead of Lafayette. We feel equally satisfied, that, when he had passed Franklin, the conductor, in the belief that he had traveled farther than he was entitled to travel on the ticket which he had purchased, would have put him off by force, unless he had made some satisfactory explanation, or had been willing to pay additional fare, though, as a matter of fact, no force was used, and no harsh language. The plaintiff, however, as we have stated, offered no explanation, and seems to have made no protest. He had in his pocket a baggage check showing that his trunk had been checked to Lafayette, and, under the rules of the company, such a cheek would not have been issued, save upon the exhibition of a passenger ticket to the same place, but it did not occur to him to show it. After getting off the train, he might have purchased a ticket which would have carried him at least to New Iberia, and beyond, but he chose to walk. It does not appear that he made any attempt to obtain shelter on Saturday night, or that there was any particular reason why he should have chosen the railroad track as a bed upon which to sleep. During the night of the twenty-eighth of May, the mere fact of his being out of doors was no great hardship, but the railroad track was neither a comfortable bed, nor a safe one, and we imagine that he might, without much effort, have done better. It seems strange, too, that, when he reached New Iberia, only fourteen miles from a town in which he had lived for twenty-live years, in a country where his family had grown up and married, and where he had a brother-in-law, and sons-in-law scattered about, some at St. Martinsville and some at Breaux Bridge, and others, perhaps, elsewhere, he should not have found some one who would have been willing to save him the necessity of walking-farther. His son-in-law, Mr. Nasson, was to have sent a buggy to meet him at Lafayette, and in fact did so. It appears that he could have been reached by telephone, so that the plaintiff might have paid his fare from Baldwin to New Iberia and have then arranged for his farther transportation by speaking (through a telephone) to his son-in-law, if he knew no one in New Iberia; or, having walked to New Iberia, he could have paid his fare to St. Martinsville and put up with his brother-in-law until arrangements were made for his transportation beyond that point. He, however, not only made no effort to help himself, but he refused assistance when it was offered to him; and, if his tramp from St. Martinsville to Breaux Bridge occasioned him physical suffering, and his feet were swollen and bruised when he reached the latter place, it was almost entirely his own doing. Under these circumstances, we are of opinion that $750 is an excessive amount to allow in the way of damages. The railroad company made a mistake, and they must suffer the consequences. But the injury done 'to the plaintiff was not intentional. There were no circumstances of aggravation connected with it, and the suffering of which the plaintiff complains was not so much the consequence of the mistake as of his wilful purpose to make the situation worse instead of better.

In Judice vs. Southern Pacific Co., 47 Ann., 257, it appears that the plaintiff was carried a little over two miles beyond her station; that she insisted that the train should back to the station, and that she refused to wait an hour for another train, or to avail herself of a hand-car, which was at her service, but walked back over the car track, though there was a public road which she might have taken.

This court said, quoting from Beer vs. Board of Health, 35th Ann., 1132: “The authorities agree, that, after a wrong has been committed, the damaged party shall not increase it, and that if he does, he shall have no right to complain for loss or injury sustained in consequence of his wilful acts of commission or omission.”

And a judgment in favor of the plaintiff was reduced from fifty dollars to three dollars, the plaintiff paying the cost of the appeal.

In Dave vs. Railroad Company, 47th Ann., 576, it appeared that plaintiff was carried about eighteen hundred feet beyond his station on a rainy night, and was then, ejected; and he also complained of harsh language. He was allowed fifty dollars, and the judgment was affirmed.

In Morse vs. Duncan, 14 Federal Rep., 396, it was said: “No recovery can be allowed for any inconvenience or physical hardship, when the same was undertaken voluntarily.”

And in Spry vs. K. & T. R. Co., 13 Mo., App. 203, the court said:

“If a passenger can find shelter, where he is wrongfully put off, he can not recover for injuries received in voluntarily walking to his destination.”

In the case before us, time was of no importance to the plaintiff. He was going to the country to spend the summer, and whether he reached Breaux Bridge on Saturday or Monday, was a matter of no consequence. He was not insulted in any way, and we doubt very much whether any one, save the conductor and the gateman of the train, knew of what occurred at Baldwin unless they were told by the plaintiff. Under those circumstances, we think that $250.00 would reasonably compensate him for the injury sustained.

It is therefore ordered, adjudged and decreed, that the judgment appealed from be amended by reducing the amount allowed from $150 'to $250, and, as thus amended, that it be affirmed, the plaintiff pay the costs of the appeal.


author: Blanchard; J.

text:
    No. 13,445.
    State ex rel. Morgan's Louisiana and Texas Railroad and Steamship Co. vs. T. C. W. Ellis, Judge of Division “A,” Civil District Court.
    Syllabus.
    1. If it be true that under the guise of an ordinance to rearrange the street railway tracks on Canal street, New Orleans, the better to subserve the public safety and convenience, an attempt is made to donate valuable additional franchises to one of the companies maintaining a track on part of said street, and that what is thus sought to be done is in excess of the powers of the municipal Council, any citizen and tax-payer has a standing in court to contest that part of the ordinance in which' is included the alleged disguised franchise grant.
    2. whether it has a new grant, and, if so, whether the same is valid, are matters of defense more particularly to be urged by the street railway company asserting the same, and, accordingly, the bringing of the suit against it alone suffices.
    3. A petition, duly verified by oath, containing averments of the unauthorized grant of a public franchise and the ultra vires character of the ordinance under which the franchise is claimed, and alleging interest as tax-payer and injury to the rights and holdings of the petitioner, presents a sufficiently good prima fade case to warrant the injunction pendente lite asked for.
    PPLIOATION for Writ of Mandamus.

      Denegre, Blair & Denegre for Relator.
    Respondent Judge pro se.

   The opinion of the court was delivered by

Blanchard; J.

The relator presented a petition to the Civil District Court, Parish of Orleans, setting forth its creation and organization as a Louisiana corporation engaged in the operation of steam railway and steamship lines for the transportation of commodities the interchange of which constitutes interstate, foreign and domestic commerce.

That as part of and necessary to its transportation business it had established and maintains in the City of New Orleans freight and passenger depots, sheds, warehouses, buildings; ferries across the Mississippi river, ferry landings, freight yards, etc., connecting the same with and by appropriate tracks, switches, etc.

That among its tracks, so connecting as aforesaid, is a single track extending along the levee from the foot of Elysian Fields street to the foot of Girod street, which is the sole connecting link and line of communication between its depots and yards south of Oanal street with its depots and ferry landings north of Oanal street, over which line there are transported about 150,000 bales of cotton, about 200,000 barrels of sugar, and about 500,000 sacks of rice, each season, besides a very large amount of other and miscellaneous freight.

That the single track aforesaid is barely sufficient for the vast amount of traffic which has to run over it — is in constant use, an average of five trains per hour, with from 20 to 30 cars each, passing over it every day.

That any new servitude or other grant by the City of New Orleans which would interfere with the free use of this track, or hamper or retard the movement of trains over it, would cause petitioner irreparable injury, and would, besides, greatly injure the commerce of the eity.

That the St. Charles Street Railroad Company, a Louisiana corporation, domiciled in the City of New Orleans, legally acquired in 1881 from said city the franchise and right of way for the operation of lines of street railway over certain well defined routes, which are described, and has been all these years and still is operating a street car system over the lines so acquired.

That recently the City Council adopted an ordinance, No. 15,254, Council Series, approved May 3, 1898, authorizing and directing a re-arrangement of the car tracks on Canal street, the object of which is to reduce the number of street railway tracks on that thoroughfare, and to reduce the risk and danger of the operation of cars thereon. But that there was interpolated into this ordinance a free grant or donation to the St. Charles Street Railroad Company of the valuable and important franchise of operating a street railway on Canal street from St. Charles street to the ferry landing on the Mississippi river at the head of Canal street, a distance of over 2,500 feet; that this franchise was attempted to be conferred on said company by changing the description or definition of its Dryades and Rampart line so that, instead of running up Canal street from Rampart to St. Charles street, and then up St. Charles street, it is authorized to run up Canal street from Rampart clear to the ferry landing aforesaid, and then back to St. Charles street and up that street; that said gift or donation of said franchise had no necessary or proper connection with the proposed re-arrangement of tracks on Canal street, and instead of decreasing, increases the number of lines on that street, and enlarges instead of minimizing the danger to the public from the operation thereof; that it is not only foreign to but inconsistent with the legitimate purposes of said ordinance and is simply a disguised donation of a valuable franchise attempted to be made under the guise of an exercise of the police power; and that an injunction restraining this illegal portion of the ordinance will not interfere with the legitimate objects of 'the ordinance, or with the exercise of the police power of the city in re-arranging the existing tracks on Canal street.

That the St. Charles Street Railroad Company, under the supposed authority of the ordinance aforesaid, is about to construct and operate an electric street railway along Canal street from St. Charles street to the ferry landing and back to St. Charles street and, in so doing, to cross twice the single track of petitioner on the levee at the head of Canal street, and will do this, and will cut the rails of petitioner’s track and put in two crossings, to petitioner’s great and irreparable injury, unless restrained by the action of the court.

The further allegation is made that the complainant company is a tax-payer and citizen of New Orleans, paying taxes in a sum exceeding $45,000 per annum, and that it has the right, as such tax-payer, to seek judicial annullment of ordinances of the City of New Orleans which are illegal and detrimental to the interest of taxpayers. Further,' that as owner of the track along the levee at the head of Canal street, and of the right granted by the Legislature to the use and enjoyment of said tracks, it has a standing in court to attack the legality of the ordinance aforesaid and to contest the legality and validity of the rights claimed thereunder by the St. Charles Street Railroad Company.

It is, further, averred that that part of the ordinance which attempts to give to the latter company the franchise to construct and operate a street railway along Canal street from St. Charles street to the ferry landing is null and void, (1) because it is beyond the power of the City Council, and violative of law, to donate or give away any street railway franchise, and that the franchise claimed by the St. Charles Street Railroad Company to construct and operate a street ear line along Canal street from St. Charles street to the ferry landing could be acquired only after public advertisement and by public adjudication in accordance with the provisions of the city charter; (2) because, so far as it attempts to confer a franchise for the construction and operation of a street railway across the tracks of the steam railways which pass along- the levee at the head of Canal street, including that of petitioner, to a terminus at the ferry landing, said ordinance is unreasonable and oppressive and a serious impairment of the rights of petitioner.

It is, further, set forth that if that part of the ordinance complained of is not null and void and if it confers the rights claimed thereunder by the St. Charles Street Eailroad Company, still that company has no right to enter upon the track of petitioner, cut the rails thereof, put crossings therein, or cross the same, as it is about to do, without previous compensation for the damages that will thereby be occasioned petitioner; that it must first proceed by due and proper expropriation proceedings to condemn, etc., and the allegation is made that by such crossing, etc., complainant will be damaged in a sum exceeding $100,000.

These various averments are set out in the petition with much of detail and elaboration.

The prayer is for judgment decreeing that portion of the city ordinance complained of null and void and perpetually enjoining the St. Charles Street Eailway Company from constructing or operating a line of street railway as authorized by the same; and in the event the court should hold that the said ordinance, or part of ordinance, is not wholly void, and that the St. Charles Street Eailway Company has the legal right thereunder to construct its street railway to a terminus at the ferry landing, then it is prayed, in the alternative, that a decree be made enjoining the said company from entering upon the track of petitioner, and from building its line across the same, until previous satisfactory compensation for the damage and injury to be occasioned, shall have been paid.

A preliminary injunction was asked restraining the street railway company, its officers and agents, in the premises until the further orders of the court.

This petition, duly verified by oath, was presented to the judge of Division “A” of the Civil District Court, with the request for an order for the preliminary injunction. Whereupon he.indorsed on the petition a rule nisi directing the defendant corporation to show cause at a time named, why the injunction should not issue.

After hearing' on this rule, the judge made an order as follows: “The preliminary injunction, pendento lite, is refused.”

The relator then applied to this court for its writ of mandamus to compel the granting of the order for injunction, and this application is now before us.

The controversy as to 'the right to the preliminary injunction seems to have been determined and refused, in the court below, on the face of the papers and argument submitted.

The ease, as made up for this court, consists of the petition for the writ of mandamus, a copy of the petition presented to the court below, together with various exhibits such as: Copies of the city ordinances relevant to the controversy, and a copy of the sale of street railway franchises to the St. Charles Street Railway Company made by the city in 1881.

The answer of the respondent judge in effect is (1) that the city ordinance re-arranging the street railway tracks on _Canal street for the public convenience was not regarded, in his view, as a franchise, or as an addition, in any wise, to the grants made to the defendant company, or any other street railway company operating lines on Canal street, and, hence, no cause of complaint arises to relator as a tax-payer since no increased burdens of expense are to fall upon the city of an unreasonable or unwarranted nature; (2) that the ordinance sought to be enjoined, while adopted by the Council and promulgated, is not an executed ordinance, and the City of New Orleans has such an interest that she should be made a party to the proceedings; (8) that on the face of the papers nothing was seen in the nature of apprehended or impending injury or damages to the relator sufficient to justify the writ of injunction; that relator’s rights on the public streets are subject to the general police powers and are not exclusive to such an extent as to prevent the city from authorizing other lines of railway to cross its tracks at street intersections.

Considering the averments of the petition for the writ of injunction presented to the court below, and of the petition for mandamus presented here, all of which, for the purposes of this trial, must be taken as true, and none of which have been sought to be contradicted, we are of the opinion that relator has made out a sufficient prima facie case and is entitled to the relief he asks.

Carre et al. vs. Judge, 43 La. Ann. 1134; 30 La. Ann. 795; 36 La. Ann. 918; 34 La. Ann. 784.

While it is true that the relator’s rights on the public streets are subject to the general police powers and are not exclusive, we do not think those questions properly arose for consideration and determination on the application for the injunction pendente lite.

If it be true that under the guise of an ordinance to re-arrange the street railway tracks on Canal street, the better to subserve the public safety and public convenience, an attempt is made to donate valuable, additional franchises to one of the companies maintaining a track on a part of said street, and that what is thus sought to be done is in excess of the powers of the municipal council, any citizen or taxpayer -has a standing in court to contest that part of the ordinance in which is included the disguised franchise grant.

As we read-the ordinance referred to, that part of it providing for the re-arrangement of the tracks on Canal street is easily distinguishable from, and not at all affected by, the other part wherein it is claimed by the relator the disguised franchise grant lurks.

The one part of the ordinance, that relating to the re-arrangement of the tracks, is not contested; the other part, that claimed to involve the grant, is.

Whether it has a new grant, and, if so, whether the same is valid, are matters of defense more particularly to be urged by the St. Charles 'Street Railway Company, and, accordingly, the bringing of the action against it alone would seem to suffice. It raises a judicial question properly determinable in a suit against that company to prevent it from exercising rights claimed under that part of the ordinance contested. To such a suit, or in the determination of such a question, the City of New Orleans is-not a necessary party. No relief is sought, no judgment asked, against it.

The courts of the country are frequently called upon to exercise their authority in restraint of legislative bodies — to prevent them from transcending their powers. This function of the courts is in most cases, indeed almost invariably, exercised in suits between individuals, and frequently by action to prevent the doing of some act authorized by an ultra vires ordinance, or unconstitutional statute.

See Railroad vs. Watkins, 48 La. Ann. 1550.

It is not intended here to go into the merits of the controversy raised, nor to decide any of the questions involved therein, further than is necessary to hold that a case is made out for the preliminary writ of injunction sought. All rights to all parties are reserved.

Let the writ of mandamus issue as prayed for at the cost of the respondent.

The Chief Justice, dissenting, handed down a separate opinion.

Mr. Justice Mohroe, also dissenting, concurred with the Chief Justice.


author: Watkins, J.

text:
    No. 13,300.
    A. Delpit et al. vs. Lizzie Young.
    Syllabus.
    The fees of an attorney who represents a married woman as defendant, in a suit for the nullity of a marriage, are not costs, and can not be taxed as such against the plaintiffs, against whom judgment has been rendered.
    APPEAL from the Civil District Court, Parish of Orleans— Rightor, J. .

      Thao. Gotonio for Defendant, Plaintiff in Rule, Appellant.

      Albert Voorhies for Plaintiff, Defendant in Rule, Appellee.
   The opinion of the court was delivered by

Watkins, J.

In the suit of same title, No. 12,871 in this court, plaintiffs instituted a suit to annul a marriage between his son and the defendant, as his wife — plaintiff as the father having brought the suit for the use of his son who was a minor. In the District Court, the defendant’s exception of no cause of action and no right of action was sustained, and the suit dismissed at plaintiffs’ cost; and an appeal having been prosecuted by the plaintiffs to this court, the judgment appealed from was affirmed.

On producing to the court a qua the mandate of this court affirming the judgment, that court ordered the mandate and decree of this court to be filed and entered of record therein.

Thereupon, the defendant, by counsel, suggesting to the court a- qua that the judgment therein rendered is now final and executory, and that plaintiffs have been condemned to pay all costs, and that under the law they are liable for the fees of her attorneys herein, and which she fixes at the sum of fivé hundred dollars to he taxed as costs therein, it was ordered by the court that A. E. Delpit and George A. Delpit, the plaintiffs — father and son — show cause why the fees of her counsel fixed at the aforesaid sum, should not be taxed as costs.

Thereupon, the plaintiffs’ counsel — the defendants in rule — excepted to the defendant’s rule, on the ground that same discloses no cause of action; and that if any right of action she has, same is by suit, and not by rule.

And, they further show, that attorney’s fees are not costs of court, and can not be taxed as such; and they pray that the rule be discharged.

The rule was fixed for trial, and upon the submission, the judge a quo held the exception taken thereto to be good, and discharged the rule.

This is the controversy we are called upon to decide.

We are of opinion that the judgment appealed from is correct.

Attorneys’ fees incurred in the defense of a suit.are not costs, and can not be so taxed — notwithstanding the parties are husband and wife.

In Melancon vs. Robichaud, 19 La. 358, it was held, that “fees which parties have to pay to their counsel for asserting their rights in courts of justice, have never been nor can they be considered as costs chargeable to the party cast.”

Code of Practice, 552.

The judgment in the original case was against the plaintiffs, rejecting the husband’s demands, for the nullity of the marriage. It, therefore, continues to exist, and during the existence of the marriage, the wife has no right of action against the husband to recover a debt.

Presumably, a community of acquets and gains exists between them. That is the necessary result of the marriage — unless a contrary stipulation had been made by a marriage contract. In this situation of affairs, the defendant has no claim that she can assert in a court of justice against her husband as plaintiff in the suit for the fees incurred in the employment of counsel in her defense.

We are clearly satisfied that the defendant’s rule was properly discharged.

Judgment affirmed.


author: Host, J.

text:
    Jesse E. Lacey v. John Hall.
    Where the defendant was indebted to the plaintiff, for which sum the plaintiff drew bills upon the defendant, which were accepted by him, but not paid, the plaintiff being under the necessity of taking up the bills as drawer, the defendant is liable to the plaintiff for the original account, although it appears to have been settled by the acceptances; and the claim is not barred by five years prescription.
    APPEAL from the Fourth District Court of New Orleans, Strawbidge, J.

      Mott and Fraser, for plaintiff.'

      W. S. Upton, for defendant.
   The judgment of the court was pronounced by

Host, J.

This is a suit on a balance of accounts. The case comes before us on the appeal of the defendant from a judgment rendered against him in conformity with the verdict of a jury.

It appears that there was a large account due the plaintiff by the commercial firm of which the defendant was a member, nnd that in settlement of that account the firm accepted drafts of the plaintiff in favor of divers persons; that these acceptances were not paid at maturity, and the plaintiff was subsequently compelled to take them up. The firm has since made partial payments, leaving unsatisfied the balance claimed.

Under that state of facts the defendant now sets up as a defence, that if the suit is brought upon the account, that account upon its face is> settled ; if upotr the acceptances, they are barred by proscription.

These grounds are equally untenable. The account was not irrevocably closed until payment of the acceptances; and as those acceptances had to be paid by the drawer, his action is not upon them : it is for moneys paid to the defendant’s use. Such an action is only prescribed by ten years. Succession of Guillemain, 2d Ann. 634.

The judgment is therefore affirmed, with costs.


author: Rost, J. Slidell, J., Eustis, C. J.,

text:
    Felicia Chretien et al. v. John G. Richardson et al.
    Although an act be in the form of a sale, yet from the circumstances and the stipulations it contains, it may he manifestly a retrocession.
    A resolutory condition is implied in all commutative contracts, and the effect of the dissolution of the contract is to place matters as though the contract had never existed. The vendor takes hack the thing sold, free from all mortgages resulting from the possession of the vendee.
    retrocession may be made by the voluntary act of the parties, where the rights of third persons are not prejudiced thereby.
    Whenever a cause of resolution of contract exists, a party may do that voluntarily which he can be compelled to do by suit. No one is compelled to defend a suit unjustly, and any consent judgment has no greater effect than a transaction which third parties may have set aside upon the grounds of collusion and fraud.
    APPEAL from the District Court of the Parish of St. Mary. Overton, J.

      A. S. Magill and T. II. Lewis, for plaintiffs.

      Olivier and E. Simon, for defendants.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff, who has obtained a judgment of separation of property against her husband, Charles N. Olivier, seeks to subject a plantation and slaves, in the possession of the defendant, to her legal mortgage, on the ground that, this property belonged to her husband, and was sold by him to the defendant during the marriage, and after her legal mortgage attached thereon.

The answer controverts the judgment of separation, and denies the existence of the mortgage; should the mortgage exist for any portion of the claim, the defendant further answers, that, in 1840, he sold the property in controversy to Charles. N. Olivier, who, in consideration of the sale, assumed to pay mortgages existing on the property to the amount of $29,505, and gave the defendant his six promissory notes, payable from one to six years, and amounting together to the sum of $35,495. That the said Oliner retained the properly four years and a half without paying any portion of the debts he had assumed, and but a small amount upon his notes; in consequence of which the defendant obtained an order of seizure and sale, and the property was seized and advertised to be sold; but before the day of sale the matter was arranged amicably, and Charles N. Olivier made to him a retrocession by which the parties were replaced in the same situation as if no sale had ever taken place; and all mortgages affecting the property, in the name of Charles N. Olivier, were extinguished.

Should this ground of defence not be sustained, the defendant further alleges, that the superior mortgage and vendor’s privilege, which have been .temporarily extinguished by the confusion resulting from the retrocession to him, of the property subject to them, must revive and take effect if he should be evicted or disturbed by the enforcement of the mortgage of the plaintiff.

If all other defences should fail, the defendant asks, that the retrocession from Olivier to him be annulled in the present suit, on the ground of the violation of that stipulation of the contract by which he bound himself to obtain the renunciation of his wife, and for a breach of warranty in authorizing his said wife to institute the present action.

The judgment of the district court was, that so much of the property in controversy as would satisfy the sum of $14,3S4 41 be seized and sold under the legal mortgage of the plaintiff. The defendant has appealed.

The district judge considered the claim and right of mortgage of the plaintiff as satisfactorily proved, and correctly, held her renunciation in favor of the defendant to be informal and void. He further held the mortgage and vendor’s privilege existing in favor of Richardson as having been finally extinguished by the retrocession, and was of opinion that the retrocession, as made, could not operate a dissolution of the contract; giving as a reason, that under arts. 2040, 2042, C. C., the contract could only be dissolved by suit or by exception. We will first examine the last proposition.

The act under which the defendant holds, although in the form of a sale, is, manifestly, a retrocession. The warranties it stipulates are all given by the purchaser to the vendor, who is expressly discharged from all personal responsibility and liability under the original contract.

It is conceded, that a resolutory or dissolving condition, to take effect in case either of the parties does not comply with his engagements, is implied in all commutative contracts, and that the effect of the dissolution is, to place matters as though the obligation had never existed; so that the vendor, in cases arising on contracts of sale, takes back the thing sold free from all mortgages and charges created by the purchaser, or resulting from his possession as owner, and the operation of law. This is one of the fundamental principles of our legislation, and has more than once been acted upon by our predecessors. C. C. 2040, 2041, 2042, 2539. Powers, Tutrix, v. Ocean Insurance Company, 19 L. R. 30. Mortee v. Roach’s Syndic, 8 L. R. 83.

But the plaintiff insists, and the judge of the district court held, that under art. 2042 C. C., the dissolution of a contract of sale must in all cases be sued for, and that a voluntary rescission cannot affect third persons.

Art. 2042 is in these words: “In all cases, the dissolution of a contract may be demanded by suit or by exception, and when the resolutory condition is an event not depending on the will of either party, the contract is dissolved of right, but in other cases it must be sued for.” It is, in substance, the same as art. 1184 of the Napoleon Code; and it is urged that, under both codes, the in-execution of the obligation is a question of fact which must in all cases be judicially ascertained before the dissolution of the contract can take place. Duran-ton is the principal authority in support of that interpretation. That author is of opinion, that as the symbolical delivery of immovables sold, which the Roman law required, is no longer necessary, and the dominion passes by consent of parties, the purchaser is the owner before payment of the price, in consequence of which the retrocession should in all. cases be viewed as a new sale, and the property should return to the vendor affected by the legal mortgage of the wife of the purchaser. 16 Duranton, No. 387.

Rolland de Viliargues expresses a similar opinion; and Touillier, in his Commentary on Obligations, would seem to countenance it. He states, in that portion of his work, that a re-transfer of property purchased, instead of being a resolution of the original contract, is in all cases a new convention which cannot prejudice the rights acquired by third persons. 7 Toullier, 551. i

But, in hig Commeniary on tlie Regime de la Communauté, the same author lays down the rule, that the relinquishment, pure and simple, by the purchaser who has not yet paid all or a part of the price in favor of the vendor, who subsequently married,.is only a resolution of the sale which the vendor could cause to be judicially pronounced, and that this relinquishment is, therefore, not a new title; it is, rather, distraclus quam novus contractus, and the property thus returned does not enter into the community. 12 Toullier, No. 195.

After having said, that tho re-sale is in all cases a new convention, he lays down the broad principle, that it amounts to a resolution of the contract, without even requiring that it should be made ex causa, necessaria. Such an authority can have but little weight; nor do we consider the reason given by Duranton for changing the rule of the Roman law, as satisfactory. Whether the delivery of the thing sold takes place by consent of parties, or by certain prescribed formalities, the possession is in both cases alike transferred to the purchaser before1 the payment of the price, when the sale is made on credit.

A brief examination into the origin of the resolutory condition may assist us in solving the question under consideration.

The resolutory condition in synallagmatic contracts is descended to us from the Roman law. Under that system of jurisprudence, however, the resolution of a sale for the non-payment of the price, could not be demanded without an express stipulation to that effect. The extension of the principle to the contract of sale is of comparatively recent origin ; but since it took 'place, the jurisprudence established for the resolution of other contracts has, so far as we are informed, been uniformly applied to'that contract also.

The rule of the Roman law on the subject before us, is contained in law 3d D. quib mod. pigii. vel. hypolh. solv. It is thus stated by Loyseau : “II est une tres belle théorie du droit, á savoir, que quand la résolution se fait pour cause nécessaire, alors les bypotbéques contracfées depuis le contrat s.jut résolues, mais quand elle se fait par la volonté de celui qui les a contractées, alors ellos no peuvont. rósoudre, afin qn’il ne soit en la puissance du debiteur d’amortir l’hypotheque. quand il le voudra, qui est la distinction qu’il faut teñir pour générales, en tous les cas auxquels cette question peut échoir.”

This was considered the law of France by Dumoulin and Pothier; and Merlin and Troplong are of opinion, that it has not been changed by tho Napoleon Code. Merlin, quest, droit, verbo Resolution, § 5, No. 3. Troplong, de la vente No. 691, vol. 2. Privileges et Iíypothéques, No. 465, 466, 467, and authorities cited. Pothier, vente No. 328.

But there are other authorities entitled to more weight with us. The case of Powers, Tutrix, already cited, was one of retrocession by notarial act, and the Supreme Court held, that the plaintiff was restored to the possession and ownership of the property, as if no sale or transfer had taken place. The same question was under consideration in the case of Fulton v. Her Husband, 7 R. R. 75, when the court said, “the re-transfer made to the plaintiff in 1835, by Morrison, cannot be viewed in the light of a purchase made during marriage. He voluntarily did that which his vendor could have obtained by bringing against him an action to rescind the sale on account of his failure to pay the price. The land became the property of the petitioner in the same manner as if the sale to Morrison had been judicially rescinded, and she held it by the title which she had before her marriage, as though no sale had been made.”

A doubt has been suggested, whether in those cases the point had been expressly made and elaborately argued as it has been before us. We have no means of ascertaining these facts, but we must presume that the court decided advisedly. We know that this question has several times been before the Court of Cassation, and that it has been fully argued before that enlightened tribunal. Its decisions have uniformly sustained the,rule of the Roman law. It was sustained in the case of Coens v. Bouvier et Consort — Dalloz, 27, part 1. p. 500 — and in the case of Gueneday v. Diets. Dalloz, 29, part 1, p. 177. But the case in point, and in which the whole doctrine of the resolution of contracts as it bears upon this controversy was reviewed with uncommon care, is that of Roussan v. Dejean. Dalloz, 30, part 1, p. 107.

In that case the resolution of a sale had been made in good faith on account of inability to pay the price, by an act under private signature. In the time which elapsed between the purchase and the resolution, a judgment creditor of the purchaser had inscribed his judicial mortgage. Being sued by the vendor to show cause why the inscription should not be erased from the records, his defence was, that the resolution of the sale not having been executed in presence of a justice or of the parties interested, could not have the effect which the law only gives to a resolution judicially ordered.

The court of the first instance decreed the erasure of the mortgage. On appeal, the judgment was affirmed, and the defendant brought the question before the Court of Cassation. All the arguments pressed upon us in this case were made use of on that occasion; but they proved unavailing, and the judgment was sustained. The reasons of the Court of Cassation are as follows : “ The court considering that whereas, under articles 1650 and 1654 of the Civil Code, the non-payment of the price authorizes the resolution of the sale: that the law thus declaring the consequences of that fact, even in cases when the contract is silent, it follows that the amicable and bond fide resolution of the sale by reason of tho non-payment of the price, and of 1he impossibility to pay it, proceeds from a forced and necessary cause, which enables the vendor to resume the dominion of the property, not as under a voluntary re-transfer, but with the same title and the same legal eflects which would result from a resolution judicially pronounced. That it is true it. follows from art. 1184 of the Civil Code relative to synallagmatic contracts in general, and from arts. 1655 and 1656 relating to the sale of immovables in particular; that resort must be had to the authority of the judge when the resolution prayed for by the vendor is resisted by the purchaser; but not that the rule is the same when the purchaser acknowledges the non-payment of the price, and his absolute inability to pay it. That in such a case, and in the absence of all contestation, the intervention of the judge, useless and frustratory, so far as the rights of the parties are involved, has not been nor should it be proscribed in the alleged interest of the creditors of the purchaser. That so far as the unpaid vendor is concerned, those creditors are only the ayans cause of the purchaser represented by him, and their rights can in no case prevail over those of tho vendor, they being in fault in not having ascertained by the inspection of tho titles and receipts whether tho price had been paid.”

This interpretation appears to us correct and consonant with justice. Whenever a necessary cause of resolution exists, the purchaser may do voluntarily what he can be compelled to do by suit. The disposition of art. 2042, which says that the resolution must be sued for, is to be understood as applying to cases in which the purchaser refuses to rescind the contract, although unable to comply with its stipulations.

If the defendant had sued Olivier in this case, the latter could not have been compelled to defend himself; and under his agreement with his vendor he would no doubt have come into court and offered to retrocede the property to him, on condition that he would assume tho payment of the mortgage of $4,500 given by Olivier to the Union Bank, and receive in satisfaction of this debt, and of the fruits during four years and a half, the sum which he, Olivier, had paid on the price. The defendant would have assented to the proposa], and a consent decree dissolving the sale would have been entered, which, in a legal point of view, would have differed only in form from the dissolution agreed to by way of transaction, and executed by notarial act. A consent decree is nothing more than a transaction ; and aii transactions have between the parties the force and effect of the tiling adjudged. L. C. 3045. “ Des que le droit de faire résoudve la vente est acquis au vendeur, et que I’acqnéreur n’a aucun inoyen de s’y soustrnire, qu’ importe qu’il soit reconnu par une transaction ou dóclaré par un jugement, la transaction ne fait alors que ce qu’il serait impossible que le jugement ne fit pas.” Morlin, Loco Citato.

We consider the rule as stated by Loyseau to be the true one, and that the inquiry should in ail cases be, whether the resolution of a contract made extra judicially was ex causa, neccssaria, vel ex causó, voluntaria.

The appellee’s counsel contend, that the necessity can only be judicially established by the decree of a competent court dissolving the sale. So far from acceding to this proposition, we aro of opinion, that such a decree would in no case be conclusive evidence of tho necessity; and that third persons having an interest to do so, might controvert it and show that it was collusive, and that no necessity existed for the resolution of the contract. When the suit has been contested, the decree dissolving the sale is prima facie evidence that it was dissolved ex causa, neccssaria ; and third parties who seek to avoid its effect, must prove the fraud or collusion. When, on tho other hand, the contract has been rescinded extra judicially or by a consent decree, the onus of proving the necessity devolves upon the party who claims the benefit of the resolution.

There may be great difficulty in certain cases to do away with the false representations of the parties, and to prove that the rescission of the contract was ex causó, voluntaria. But that difficulty exists to the same extent, whether the rescission is effected by a judgment or by way of transaction.

The fact that this mode of proceeding was matured and brought into use by the Roman jurisconsults, and that it has been followed by modern nations and extended to the contract of sale to which it did not originally apply, sufficiently shows that it does not, in practice, afford any great facilities to fraud. It must be observed that there is, between the vendor and purchaser, an opposition of interests sufficient to render cases of fraudulent combination between them extremely rare. If the property falls in value after the sale, the interest of the vendor, especially when he has been partially paid, is to enforce a specific performance of the contract. If, on the contrary, it rises in value, it is the interest of the purchaser to retain it and pay the price ; and if it was proved in any case of resolution by contract that the property might at the time have been sold for more than was due on it, to the knowledge of the purchaser, the bona fides would be wanting, and the rights of subsequent mortgage creditors would not be affected by it. In this case, the necessity is clearly made put. Nothing had been paid on the cash portion of the price. The purchaser was greatly in arrears on the credit installments, and interest had been accumulated from the day of sale, when, the defendant having no longer any hope of being paid, had the property seized and advertised under his mortgage and privilege. It is not pretended that Olivier could have paid the amount then due. Every thing in the record lends to the conclusion that he could not have done so. He was helpless and at the mercy of his creditor, who was about to sell his property for cash if no arrangement was made. This makes out a clear case of necessity ; and as the plaintiff has not shown that the property, if sold under the order of seizure, would have brought more than enough to satisfy the defendant’s claim, she has sustained no injury by the retrocession.

Such being the opinion we have formed on this part of the case, it becomes unnecessary to pass upon the other grounds of defence. We consider that the contract was dissolved by the retrocession, and that the property returned to the possession of the defendant, free from incumbrance and unaffected by the legal mortgage of the plaintiff.

It is therefore ordered, that the judgment in this case be reversed, and that there be judgment in favor of the defendants, with costs in both courts.

Slidell, J.,

concurring. I concur in the decree prepared by Judge Rost, but wish to be considered as not concurring in all the propositions announced in his opinion, and as acting only with reference to the state of the facts presented in this cause. It is proper to add, that my conclusion is adopted with diffidence, especially as I had not the advantago of being present at the argument.

Eustis, C. J.,

dissenting. I am not able to concur in tho views taken by my brethren of the law of this case.

According to the provisions of our code, articles 2539, 2041 and 2042, my impression is, that a subsequent mortgage creditor on property, the price of which has only been in part paid, for which the vendor’s privilege and a special mortgage has been retained, can only be cut off by a judicial rescission of the sale, or by judicial proceedings for the recovery of tho price, and the sale of the property under the privilege or mortgage. To allow the parties themselves, by an agreement, to defeat the rights of subsequent mortgagees, I think is inadmissible under the code, and in practice fraught with danger of abuse. Ricks v. Goodrich, 3d Ann. 217.


author: Prestos, J.

text:
    William Conner v. S. L. Hill & Co.
    The plaintiff, in Tennessee, entrusted a flatboat of corn to liis son to be brought to New Orleans and there sold. The son left the boat aL New Orleans in charge of a third person, who sold the Corn, without any authority, to an innocent purchaser and absconded With the money. Held: that the plaintiff must bear the loss. C. C. art. 2427, does not apply to such a case.
    Where one of two innocent persons must suffer a loss in consequence of the unauthorized acts of an agent, he whb is the cause of the confidence, by which the loss has been occd* sioned, ought to bear it.
    APPEAL from the Fourth District Court of New Orleans, Slrawbridge, J.

      Wolfe and Singleton, for plaintiff.

      Hosier and E. A. Bradford, for de. fendants.
   The judgment of the court was pronounced by

Prestos, J.

The plaintiff being the owner of a flatboat load of corn, in the fall of 1848, shipped it, in charge of his son John Conner, from Ashport, in the State of Tennessee, to this city for sale. The boat and cargo arrived in safety at Freeport, above this city, in charge of young Conner. "Wishing to return to Tennessee for another boatload, as he said, he put one Allen in charge of the boat and corn, to prepare it by husking, shelling and sacking, for sale, and charged the mercantile firm of Nalle Sf Coxe with its sale. Allen brought the boat and corn to the ilatboat landing of the Second Municipality; reported its arrival in the newspapers and himself as master of the boat. He then sold the boat and cargo to the defendants, and absconded with the proceeds of the sale.

Young Conner soon afterwards returned to this city, and, learning these facts, disavowed the authority of Allen to sell the boat and cargo and claimed the value of the same from the defendants, which they refused to settle; and William Conner, the original owner of the boat and corn, has instituted this suit against them, to recover the value of the same, on the ground that Allen had no authority to soil; and, further, that the defendants purchased his property from Allen, without exercising due caution to know that he was not the owner.

We have attentively considered the 2427th article of our code, which proscribes that the sale of a thing belonging to another person is null; also, the principle of the Roman law, “Nemo in alium potest transferre plus juris quam ipse hahet.” We have also considered that the principles which govern sales in market overtin England do not belong to the civil law, and have duly weighed the numerous decisions cited by the plaintiff's counsel in support of their case.

But we think that special circumstances have been proved in this case, which takes it out of the principle contained in our code and in the Roman law, and in the decisions that have been quoted. The plaintiff entrusted his son with the property and authorized him to sell it. His son represented Allen as his partner, and stated that the corn was theirs, and that Allen had authority to sell it. They purchased goods on joint account, and said that when the corn was sold they would pay for the goods with the proceeds.

Moreover, the plaintiff does not sue for the corn itself, - but for its value. If he ratifies the sale ho cannot claim the proceeds, for they wore paid to Allen, who sold the corn. If ho claims from the defendants merely because the corn passed through their hands, it is clear he cannot recover unless they were guilty of an offence or quasi-offence or fraud, with none of which the evidence charges the defendants. The plaintiff has lost his property by his own imprudence in confiding it to the inexperience of his son without responsibility, and must bear the loss, rather than impose it upon innocent third persons.

We applied this, principle to the contract of affreightment in the case of Walker v. Cassaway, 4th Ann. 20 ; and in the case of Moore v. Lambeth, 5th Ann. 73, this court said : “Although it was not essential to the decision of the cause, that in some of the transactions of commerce, an owner may be estopped from reclaiming his property from a subsequent bond fide purchaser, by having voluntarily placed in the hands of another the indicia of ownership, and exhibited him to the world, as a person having power to dispose of it; and however certain his intentions not to part with his ownership, he would not be heard against an honest purchaser who had acted upon the confidence thus imprudently reposed.”

The Supreme Court said the same thing substantially in the case of Jenkins v. Thenet, 9 R. R. 35, though that too was an obilur dictum. But the observations in both cases were based upon the great and well settled principle of equity, that where one of two innocent persons must suffer a loss, he who is the cause or occasion of that confidence, by which the loss has been caused or occasioned, ought to bear it. A principle adopted to encourage commerce among men while they act with ordinary prudence, and not to permit ■ their transactions to be defeated by what may be concealed.

It imposes on the shippers of produce for'salé, the necessity of selecting with great care, honest and capable men to intrust with their property; and on the other, gives that confidence to our merchants which enables them to purchase without requiring security, and perhaps to give better prices.

The judgment of the district court, under the circumstances, does not violate any principle of law, and it is affirmed, with costs.


author: Rost, J.

text:
    Reuben Anderson et al. v. Cora Ann Cox.
    The plaintiffs sued upon an administrator's bond which they alleged had been lost. On the trial, they offered in evidence a certified transcript of the record, which included a copy of the bond. The evidence was received without objection. It was contended they were thereby exempted from the necessity of making the proof necessary in actions upon lost instruments. Held: That as the clerk’s certificate was made after the instrument was alleged to have been lost, it formed no proof of the instrument, and that the plaintiffs could not recover without the evidence required in actions on lost instruments.
    An heir who had renounced her father's succession, is not liable in an action based upon an administrator’s bond on which the father was surety. Nor is she made liable by giving her assent to a petition by the other sole joint heir, claiming the succession.
    from the Fourth District Court óf New Orleans, Strawbridge, J.

      Stockton and Steele, for plaintiffs,
    contended: The evidence showed that the succession of Anderson was never closed, no account of the administration having been homologated.
    It is idle to talk of prescription in such a case : here is a contestatio litis pending in court, and up to this day undetermined. Even if the account were homologated, it does not pretend to account for any more than $2802 62L But it makes no legal or satisfactory account for one dollar.
    On the 14th day of July, 1841, Mrs. Cox and Mrs. Slocomb, her daughter, filed in the late Probate Court of New Orleans, in the matter of the succession of Nathaniel Cox, their petition ; in which Ann Barnes Cox is styled widow of Nathaniel Cox, “and in community of interest in his estate.” Cora Ann Slocomb is called the only child of Nathaniel Cox, “they being the universal heirs of the said Nathaniel Cox, and so constituted by his will,” — so says the petition.
    The prayer of the petition is, that the syndic appointed to administer the estate be ordered to account; that “ your petitioners may be recognized as the sole heirs to said estate, and that said Adams be required to account with your petitioner, Ann Barnes Cox, and pay over to her the whole of the money, and deliver to her the whole of the estate remaining. Your petitioner, Cora Ann Slocomb, assenting thereto. They pray for general relief in the premises.”
    “ Chinn, for petitioners.
    “ 1 assent, Cora A. Slocomb.”
    On tho Gth August, 1847, judgment on this petition was rendered. This judgment recites that, in consideration that it is shown that Mrs. Cox is tho widow, and Mrs. Slocomb the only child of Nathaniel Cox, and that by his will they were constituted the universal legatees of his property “and that on the 14th July, 1841, they filed a petition in the late Court of Probates in and for the Parish of Orleans, in the above entitled suit, the said succession being under the administration of a syndic, praying to be recognized as heirs, praying also that the syndic account with the said Mrs. Cox, and pay over to her all the moneys then coming to said heirs, and that she be put in possession of the residue of said pi’operty, the said Mrs. Slocomb having by public act, passed before H. B. Cenas, notary public, on the 6th day of June, 1837, renounced the said succession and her share thereof, uncondititionally and without any reservation, in favor of her mother, the said Mrs. Cox," &e., it is ordered that Ann Barnes Cox and Cora Ann Slocomb be recognized as heirs of Nathaniel Cox, as aforesaid; “and considering the renunciation as aforesaid, it is further ordered, that the said Ann Barnes Cox be placed in possession of all the residue of said estate, and that the same be delivered to her.” &c.
    As before stated, on the 13th May, 1850, a judgment was entered against Reuben Anderson et al. sustaining the defendant’s plea of prescription.
    From this judgment the plaintiffs appealed; and assign for error, in this court, that the judgment is clearly contrary to law and evidence. 1. The heirship of plaintiffs is fully and incontrovertibly established by the depositions. 2. The matter of account is still pending and undetermined, and the estate has been wholly destroyed in the meantime; the plea of prescription is therefore so totally untenable as, in our opinion, to merit no comment. 3. The acceptance of the succession of Nathaniel Cox by Mrs. Slocomb, is too manifest and free from doubt to warrant any argument upon the point. She renounced the succession by act before Cenas, 27th May, 1837; but she claimed and accepted it by her petition filed in the late probate court, on the 14th July, 1841, wherein she prays to be recognized as heir, and that her portion of the estate be delivered over to her mother, Ann Barnes Cox. This is an acceptance of the succession, and a transfer of her interest in it to her mother. 4. The real estate does not appear ever to have been sold by the curator; and therefore, the security, Cox, is not liable for its value.
    But the persona] estate was sold, and it brought more than $5300 ; and for the price, the bondsman, Cox, is certainly bound, as for the value of a wasted estate.
    Argument on any point raised in this case would, in our opinion, be a matter of supererogation, and it it is therefore omitted.
    JE. A. Bradford and C. M. Emerson, for defendant,
    contended: Prescription begins to run from the time when the creditor has aright to sue. Hernandez v. Montgomery, 2 N. S. 432, Andrews v. Rhodes, 10 R. R. 23, Gueno v. Soumastre, 1st Ann. 44. It runs also against a vacant estate, although no curator be appointed. Old Code, art. 42, p. 486, New Code, art. 3492, Dane's Heirs v. Ellúns et al. 9 L. R. 142. Leonard et ais. v. Fluker, 4 R. R. 150. Calvitt et als. v. Mulhollan, 12 R. R. 258. s
    All personal actions, whatever may be their nature, except those barred by a shorter time, are prescribed by ten years, if the creditor be present, and by twenty if he beab sent. Code, art. 3508; and in Barrelli v. Riviere, 3d Ann. 46, the court held this language : “ Neither the nature of the debt nor the mode of life of the debtor can affect the rule.”
    Let us apply the above principles to the case at bar: The succession of Thomas Anderson, was opened in 1811, under the Old Code, and it was a vacant one. It was the succession of a man of full age at the time he died ; and the plaintiffs state that their ancestor, Andrew Anderson, father of the deceased, through whom they claim, was the sole heir. He must, therefore, be presumed to have been above the age of twenty-one years in 1811, when his son died.
    In August, 1814, the attorney for absent heirs presented a petition, in which he prayed that the curator’s bond be handed to him for suit; and an order was given by the court to that effect.

      Gray, the curator, had failed to render his account, although more than once required to do so; and after the month of August, 1816, no further proceedings were had in the succession. The rights of its creditors and of the heirs under the bond, had therefore matured not later than August, 1816, and suit could then have been instituted and maintained upon it. From that time to the institution of the present suit, a period of above thirty years, prescription has been running; for in August, 1816, the heir or heirs had the same right to commence proceedings that they had in 1849. If their right is indisputable now, it was equally so at the former date, and they must, therefore, pass under the rule which says prescription begins to run when the right to sue has accrued.
    The code declares that all personal obligations, except those already provided for, are barred in ten years, &c.; and this court declares that the nature of the debt cannot affect the general rule. With what propriety, then, can it be argued that a curator’s bond form an exception to the rule, and where is the law or principle of law which supports the argument?
    Under the will of Nathaniel Cox, a copy of which is submitted, the defendant and her mother were made universal legatees. A short time after the death of her father, the defendant renounced his succession in due form. The effect of this renunciation is sought to be avoided, by the pretence that she afterwards accepted the inheritance; and a petition, together with the judgment thereon, in which the prayer and decree are that the defendant and her mother be recognized as heirs, and the balance of the estate handed over to the latter, is cited as proof of the fact.
    A proper construction of these documents would not hold the part taken by defendant in that petition to be an acceptance. She had renounced, nnd that act was a complete alienation of all her rights to her co-heir, (Code 1011,) and ner portion belonged and passed to the co-heir. Art. 1015. It was, perhaps, unnecessary that she should, under this state of things, have joined in the petition referred to; but, to save cavil, she assents to the prayer of the petition by simply signing her name at the foot of the petition, under the words, “I assent.”
    To what did she assent ? Her father’s estate had been wound up. The balance, after the payment of the debts, consisted in a few outstanding claims, which her mother desired to sue; but in order to authorize her, without dispute, to commence legal proceedings, she wished to be placed formally in possession; and that was the sole object of the petition. That petition cannot be deemed to be the act of defendant, without completely overlooking its design; nor can Mr. Chinn, who signed it as attorney, be considered as acting for her: otherwise she would not have signed it herself; but he must be considered as the attorney of her mother, for whose benefit it was presented. Under the renunciation, to which express reference is made in the petition, the defendant was entitled to no share in said balance, and no act of hers could give her any right or title to it, or make her any more or less an heir than she already was.
    Her intention, therefore, in signing the petition becomes a mntter of importance, and should govern in construing the act. Was it her intention to be placed in possession jointly with the co-heir, or to be recognized as heir for'the purpose of receiving any benefit or incurring any liability? By no means. Her sole object was merely to confirm what she had already done by renouncing, and to show that she had no claim or title to the surplus.
    . We contend that this solitary act of defendant, from which she reaped and designed to reap no advantage, does not subject her. The law which renders the acceptor of a succession liable for its debts, is founded upon the principle that the assets and debts must go together, and that the one cannot be taken without the other.. As in the case of partnership, he who shares the profits must share also the losses ; but this rule does not apply to the case under consideration. Here the party seeks no advantages, and is entitled to none. How, then, can the circumstance of her writing the words “ I assent” at the foot of a petition, the only object and effect of which was to place another in possession, be construed as implicating her in the premises ?
    The plaintiffs administered no proof that the bond was lost, or that it was signed by Mr. Cox. The steps required by art. 2259 of the code have never been taken; but the plaintiffs believe they have surmounted every difficulty, by introducing, without objection, what purports to be a copy of the curator’s bond.
    At the trial below, the plaintiffs offered in evidence what they said was a transcript of the proceedings of the probate court in the succession of Thomas Anderson. It contained upwards of thirty pages, and as no sound objection could be made to the introduction of the proceedings, and as, on a careful examination of said proceedings and of the papers on file, made previously by defendant’s counsel, neither the bond nor a copy of it was found, no exception was taken to the transcript, inasmuch as it could not be supposed to contain a copy of the bond. During the argument, defendant’s counsel were surprised on hearing a supposed copy read. A reSxamination shows that the copy in question was taken from no part of the proceedings or papers on file, but from what purports to be a copy found in an old book called Miscellaneous Records. It is, therefore, nothing more than a copy of a copy, and was introduced without any proof of the loss or destruction of the original.
    Under these circumstances, we contend that it proves nothing. But if it should be considered as proving the existence of the curator’s bond, its introduction did not waive .the necessity of proving Mr. Cox's signature, which was especially-denied in the answer. C. P. 325. C. C. 2241. See also, Norwood et al. v. Green et al. 5 N. S. 176 ; and Poydras v. Hiriart, 6 N. S. 403.
    The plaintiffs have favored us with no proof to show what became of the original; and for aught that appears it may have been taken up by the curator or its amount satisfied out of his estate.
    The plaintiff’s have never pursued the principal of the bond. This they were bound to do before they could proceed against the surety. Acts of 1842, sec. 6, p. 302. Wilsonv. Murrell, 6 R. R. 69.
    Nearly forty years they waited before they saw fit to pursue their rights. Meantime, all of the parties originally interested have probably passed away ; the succession of defendant’s father has been settled, and no claim was made by plaintiffs to be placed among its creditors. The plaintiffs have been guilty of great laches; and at this late day it would be of no avail to attempt to subrogate her to any rights they may have had in the premises.
   The judgment of the court was pronounced by

Rost, J.

This is a suit upon a lost instrument, a curator’s bond, alleged to have been signed by the father of the defendant as surety of one J. F. Gray, curator of the succession of Thomas Anderson, on the 26th September, 1811.

The defendant denied the existence of the bond, and her liability under it, if it existed. She filed also a plea of prescription, which was sustained in the court below. The plaintiffs have appealed.

On the trial of the cause, the plaintiffs offered in evidence a large transcript which is entered in the note of evidence as proceedings in the succession of Thomas Anderson, deceased. It was received without objection from the defendant. That transcript purports to contain a copy of the bond sued upon ; and the plaintiff’s counsel insists that this copy being in evidence, it was unnecessary for him to make the proof usually required in cases of lost instruments.

The plaintiff’s petition was filed on the 3d January, 1849. They state in it that the original bond was placed, when given, among the papers of the succession of Thomas Anderson, but that it has since been lost or mislaid by the officers of the court; that they have caused a diligent search to be made, but without success, and that it cannot be found.

The transcript offered in evidence is certified by the clerk to contain true copies of all the papers on file, and of all the proceedings had in the succession: it bears date the 22d day of January, 1849, nineteen days after the filing of the petition. That certificate covers nothing more than copies of original documents and judicial proceedings on file at the time of its date. By the plaintiffs’ own showing, the bond had been lost and was not on file at that date. It is, therefore, not authenticated by the certificate, and there is nothing in the record to show its genuineness, or to dispense the plaintiffs from making the proof required in cases of lost instruments, which the answer of the defendant rendered indispensable.

But if the bond itself was in evidence, it is clear that the defendant would not be liable under it. By the same disposition of his will, Mr. Cox left his property jointly and in equal shares to his wife, Ann Barnes, and to his only daughter. On the 27th May, 1837, the defendant renounced the succession of her father by a notarial act in due form. Under article 1700, C. C., her half inured to the benefit of her mother by right of accretion. After the renunciation, she was no longer liable for the debts of Mr. Cox, unless she subsequently accepted the succession, notwithstanding the renunciation. The question is, whether such an acceptance has been shown.

In 1841, a petition signed by an attorney at law was presented to the court of probates in behalf of the defendant and her mother: it alleges that they are the sole heirs of Mr. Cox; and the prayer is that.they may be recognized as sole heirs of his estate, and that the curator of his succession be ordered to account, and to pay over to Mrs. Cox the assets in his hands. At the foot of the petition these words are written, “ 1 assent, Cora A. Slocomb.”

Nothing was done on this petition until 1847, when the court rendered the following judgment: “ It is ordered that Ann Barnes Cox and Cora Ann Sloeomb be recognized as heirs of Nathaniel Cox; and considering the renunciation and petition as aforesaid, it is further ordered, that the said Ann Barnes Cox be placed in possession of all the residue of said estate, and that the same be delivered to her.”

The judge bases his decree upon the renunciation of the defendant, which appears to have been in evidence before him. The object of the defendant, then, in this proceeding, so far from being to annul that renunciation was in futher-' anee of it. Under that state of facts, it cannot be urged against her that she assumed the quality of heir, or that she was adjudged to be such. All laws must receive a reasonable intepretation. The judicial proceedings meant by article 982, C. C., are those in which the heir appears to claim as such some right in the succession. But the petition in this case contains an express disclaimer of any right. The assumption of the quality of heir by the defendant, was utterly without object, and originated in the want of legal knowledge of the counsel who drew the petition.

It is true, the judge says in his opinion, that the defendant renounced the succession in favor of her mother. But the fact is not so. Her renunciation is unconditional and absolute ; and the error of the judge on this question of fact cannot affect her rights. The decretal part of the judgment recognizes her as an heir having renounced, and is based upon that renunciation. It cannot, therefore, have the effect of setting it aside.

We have tested the rights of the parties on the hypothesis that the assumtion of the quality of heir, in a judicial proceeding, after renunciation, amounts to an acceptance, and has the effect of annulling that renunciation. ■ But we do not wish to be understood as oxpressing an opinion on this question. The renunciation can only be made by an authentic act, and it might be that the subsequent act of acceptance which annuls it ought to be clothed with the same formalities.

For the reasons assigned it is ordered, that the judgment in this case be affirmed, with costs.