text:
    No. 11,731.
    Robert F. Choppin et als. vs. The Union National Bank.
    The suit for partition calls on defendants to urge all defences on which they propose to rely, and the decree for the partition concludes them from any attack on the plaintiffs’ title, the basis of their demand for the partition; lienee, an injunction by defendants to stop the execution of the partition decree, the injunction obtained on the ground that the plaintiff had no title to demand the partition, will be dissolved. Civil Code, Arts. 1330, 2286.
    A PPEAL from the Twentieth Judicial District Court, Parish of St. 1 James. Guión, J.

      Edward N. Pugh for Plaintiffs, Appellants.

      R. N. Sims and Garleton Hunt for Defendant, Appellee.
   The. opinion of the court was delivered by

Miller, J.

The plaintiffs seek to enjoin the sale of property decreed to be sold to effect a partition, by the lower court, and by this court, on appeal in the previous suit of the Union National Bank vs. Choppin et als., 46 An. 629. The defendant, with other de-fences, pleaded the judgment in the previous partition suit, to which the plaintiffs in the present injunction suit were parties, as res judi-cata precluding the plaintiffs’ demand. The judgment of the lower court maintained the defence, dissolved the injunction, and plaintiffs appeal.

The Union National Bank derived its title to the property involved in this controversy under its judgment and execution sale in its suit against some of the Ohoppin heirs; the hank claiming to have acquired at the sale title to the extent of seventy-nine one hundred and twenty-seconds of the property. The partition suit following this sale was by the bank against those of the heirs of Ohoppin not parties to the bank’s judgment, and whose interest in the property was not divested by the execution sale. The partition suit of the bank, of course affirmed its title acquired at the execution sale, that title being the basis of ownership by which the bank demanded the partition. Brought against the defendants as owners in common with the bank, the suit equally affirmed their title. Oivil Code, Art. 1330. That suit resulted in a decree for the partition in the bank’s favor against all the defendants. The plaintiffs in the present suit were included as defendants. The contention of the plaintiffs here is, that though parties to the partition suit, they are not bound by the decree, but are at liberty now when the bank is proceeding to execute the partition judgment to attack the title of the bank on which the partition decree was based.

The issue tendered by the bank in the partition suit was the title claimed by it under the execution sale. The defendants in that suit, the plaintiffs here, did not attack the title of the bank. They chose to defend on another ground. But none the less they are bound by the partition decree. That closed the controversy, so' far as the bank’s title is concerned. If they could reopen that controversy to urge defences such as they now present, there would be no end to litigation. In reaching this conclusion we give all the consideration it deserves to the suggestion that, disclaiming heirship in the partition suit, plaintiffs had no interest in raising any issue as to the bank’s title. We think the partition suit called on defendants for all the defences of which the case was susceptible. Certainly if the bank had no title to demand the partition, that was the most obvious defence. The defendant called on to meet the issue of title is not at liberty to have as many trials as the defences he may conceive to exist.

Our view of the defence of res judicata dispenses consideration of other issues sought to be raised by defendants.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed at plaintiffs1 costs.


source: Caselaw Access Project

author: Nicholls, O. J. Watkins, J.

license: Public Domain

text:
    No. 11,764.
    State of Louisiana ex rel. Dick Vickers. Praying for a Writ of Habeas Corpus.
    On the trial of an application of a party indicted for murder to be released on bail, there is no necessity, unless he asks that he be brought before the court, for the accused to be personally present, as the legality of liis detention is not called in question. The sheriff as an officer is not legally concerned whether the application for bail be granted or not. The District Attorney of the district in which the criminal charge is pending is the proper person with whom such an application should be contradictorily disposed of, and it is proper that the District Judge, if he has taken previous action in the matter, be notified of it.
    A mistrial because of a disagreement of a jury as to a capital offence does not furnish the accused the absolute right to give bail. That fact, coupled with other circumstances, simply affords proper matter for the court to consider in exercising its discretion as to whether or not it will admit to bail.
    Bail is frequently allowed from considerations independent of the merits of the prosecution, as, for instance, the dangerous illness of the accused, or long delay in bringing his case to trial. Such cases are addressed to the sound discretion of the court, and the conduct of the prisoner after his indictment enters as a factor into their determination.
    Where the record brought up shows that a mistrial in a capital case was followed by an application by the accused for bail — that the application was granted, but that instead of furnishing bond the pa ty escaped — that thereupon the order was revoked by the District Judge. That subsequently, the prisoner being in confinement, his case was called for trial, but over his objection it was continued for five months] that he made a second application for bail to the District Court, which was refused (the court refusing to hear testimony), and he then applied to the Supreme Court for relief — that court refused the writ — there being no attempt to establish before it that the return of the accused to imprisonment was through his voluntary act, and there being nothing before it which was not before the District Court upon the second application. That the accused had, after escaping, voluntarily surrendered himself, is not established by a proffer before the District Court to prove that fact, and a refusal by the District Judge to hear testimony upon the subject brought before it: The facts connected with his return are merely asserted, and not attempted to be shown to the Supreme Court by evidence. The bill of exception taken in the District Court does not, .pera*, establish the facts referred to.

      J. G. Pugh and Goss & Parsons for Petitioner.

      M. J. Cunningham, Attorney General, and J. B. Lee, District Attorney, for Respondents.
    Argued and submitted March 20, 1895.
    Opinion read April 8, 1895.
    Relator alleges that on the 25th January, 1894, he was indicted by the grand jury of De Soto parish, charged with the murder of one Oherose; that on the 17th of February, 1894, he was tried by a jury, which was unable to agree, and a mistrial was ordered by the trial judge. That on February 11, 1895, he, through his counsel, demanded a trial, when, on motion and affidavit of the District Attorney, his case was continued to the August term of court. That after a continuance of his case, as aforesaid, he applied to the presiding judge for bail, which application the said judge refused to hear or entertain, whereby he has been deprived of his constitutional right to bail, a right guaranteed him by the Constitution of the State. That in his case the proof is not evident, nor the presumption great, all of which would appear by reference to the transcript which he annexed to his petition. That the presiding judge, who refused to hear his application for bail, in a written opinion on file and of record, and which he annexed to his petition in said cause, said: “The question was whether, believing with the jury that it was not a proper case for the infliction of the death penalty, I should, because I had it in my power to do so, and because he was unable to give bond, allow him to lie there and die, and thereby inflict the death penalty through the machinery of the law without a conviction and in a case to which neither I nor the jury thought the death penalty should be applied.”
    The record sent up shows that relator was indicted for murder on the 24th January, 1894, and that on February 27,1894, a mistrial in his ease was entered, the jury before which he was tried not being able to agree. That on the 27th February, 1894, his release from imprisonment was ordered, conditioned on his giving bond for two thousand dollars. That on the 24th of September, 1894, this order was revoked, the judge’s order for revocation stating “this order for bond is hereby revoked, the defendant having escaped and shown a .disposition to avoid a trial.” That on January 28, 1895, the case was fixed for trial for February 4, 1895, but this order was set aside on the next day. That on the 11th February, 1895, the accused, through his counsel, asked that it be again fixed, but that the District Attorney, objecting and filing a motion for a continuance, supported by affidavit, the case was continued to the next term of court. That the accused then applied to be released on bail, which the court refused. That he then proposed to offer certain testimony and evidence in support of the application,.but the District Attorney objecting, the judge refused to receive the evidence, and that to the rulings of the District Judge counsel of accused took a bill of exception.
    In his affidavit for a continuance'the District Attorney declared that the State could not go safely to trial, in consequence of two important witnesses for the prosecution, after having been subpoenaed, having absented themselves from the State without his knowledge; that these parties had testified at the coroner’s inquest, and the importance of their testimony would appear from a copy of the same annexed to the motion for continuance. That he had been informed that these witnesses were absent through the procurement, consent and aid of the accused.
    In the first bill of exception taken by relator it is recited that the defendant, in open court, making an application for bail, proposed to show and establish that after his alleged escape he voluntarily surrendered and offered to tender evidence to show that he had nothing to do with the leaving of certain State witnesses referred to in the application for continuance by the State, and that he offered to introduce on trial of said application the written opinion of the trial judge as published in the Democrat Journal of date Friday, June the 8th, 1894, which opinion or article was annexed do the bill, and offered to show that the next jury term of court was six months off; all of which offering of evidence and tender of proof the presiding judge refused to hear and receive.
    The District Judge, in signing the bill, says: “The above statement might imply that the court had, on defendant’s application, gone into the question of bail. If so, it is that far wrong. The defendant asked the court to hear and consider an application for bail, and to receive evidence on the question, which, on objection by the District Attorney, the court declined to do. The defendant then stated his purpose to offer, if the question was opened, the evidence mentioned above. The court was of the opinion that where the witnesses had left the State, through the instrumentality and the procurement of those working for and managing the defence (not the lawyers, of course), as the court was satisfied is the case here, and the State was then forced to apply for a continuance, it was not a proper case for the court to go behind the indictment and inquire into the question of bail. It is true that an order for bond was once granted after hearing the evidence at the mistrial and afterward set aside, but in granting that order the court was largely influenced by the fact that the prisoner had originally surrendered the day after the killing and shown no disposition to avoid a trial and one trial had been had, resulting in no verdict. He failed to give the bond and made his escape by feigning sickness and deceiving the doctors and deputy in charge of him; went to the woods and avoided arrest until the next court passed (August term, 1894), and now a trial is again defeated by the means above described and set forth in the affidavit of the District Attorney. Under these circumstances the court felt constrained to refuse to go into the question of bail.
    The article in the Democrat Jomnal, referred to in the bill of exceptions, was simply a private card published in that newspaper, by W. P. Hall, who is the judge of the District Oourt in which the indictment was found, which apparently was drawn out by a criticism upon his having, as judge of the district, permitted the accused to have been removed from the jail and placed in the custody of a deputy sheriff at a private house, from which it would seem he made his escape. This permission was based upon the fact that the accused had been unable to furnish bond under the authority given him so to, and upon a belief of the judge that his physical condition was such as to endanger his life were he to be forced to remain imprisoned at that time. In the course of the article the judge used the words which the relator has embodied in his petition.
    The refusal of the District Judge to allow bail was followed by the present application.
   The opinion of the court was delivered by

Nicholls, O. J.

Relator claims that this application comes before us in the exercise of the original jurisdiction conferred upon this court by Article 89 of the Constitution. His prayer is that he be admitted to bail, and to this end he has ruled the sheriff, who has Mm in custody, to show cause why this should not be done. There is no claim that the relator’s.detention is unlawful, and the sheriff’s connection, therefore, with the case is different from what it would have been had an issue of that kind been presented.

On the argument, counsel referred to the fact that the sheriff had made no return, but that in lieu thereof the District Judge and the District Attorney had filed statements or shown cause. The sheriff, on the rule to show cause, would, of course, have had no cause to show. As an officer he is not legally concerned whether the accused should, in the interval between indictment and trial, be imprisoned or set at large. In matters of this kind the District Attorney is the proper person with whom the proceedings should contradictorily be taken. In the appendix to Church on Habeas Corpus will be found a printed form by which he is to be notified of such applications. It is proper that other parties also interested should receive notice thereof. In the case at bar the District Judge has been called on to take action, and had, in fact, taken action in the matter of releasing the defendant on bail, and it was in the interest of the regularity of judicial proceedings that he should be advised of the proceeding. There was no absolute necessity, under the issue as made, that relator should be personally present, nor has he asked to be present (Church on Habeas Corpus, par. 389, q.). We assume that the sheriff, as in duty bound, will conform to whatever order the court may issue in the case.

In State ex rel. Bauman vs. Sheriff, 44 An. 1016, we said that whilst the writ of habeas corpus is one of right, it is not one of course; that a party seeking to avail himself of it is not at liberty to select for himself absolutely either the time or place for relief or the tribunal for which it is to be obtained; that so far from conceding it to be the duty of this court to entertain and act under each and •every application for the writ on which we might legally do so, we were of the opinion that we should abstain from action where this might as well be done in competent lower courts, unless there should he special circumstances making immediate direct action or intervention necessary or expedient.

The great expense and inconvenience of bringing parties and witnesses to the city of New Orleans from remote parishes; the amount of time necessarily occupied in esamination and adjudication of issues placed through original hearings before a court whose jurisdiction was intended to be mainly appellate and supervisory, and only exceptionally original, and the (almost unavoidably) unsatisfactory and imperfect manner in which the exact facts of the different cases can be shown, furnish obvious reasons for the rule there announced.

Relator assigns as a special reason for our entertaining the present application, that the District Judge refused to entertain a similar one presented to him. An inspection of the record shows that after relator had been placed on trial for murder, and the jury had been discharged on account of their inability to agree on relator’s application for bail, he was ordered to be released on furnishing bond in the sum of two thousand dollars; that being unable to furnish this bond he remained in prison. That being attacked later by illness the District Judge permitted him to be removed from jail and kept at a privaie house under custody of the sheriff. That he escaped from this house, and pending his absence the District Judge revoked the order for bail. That subsequently he was either captured by the officers or he surrendered himself, and his case was fixed for trial, but upon it being shown that two of the witnesses for the prosecution had absented themselves from the State the case (over relator’s objection) was continued to the next jury term. That he then made a second application for bail, which the judge refused. Accused then asked that evidence be heard on the question of bail, which the court refused to receive on objection of the District Attorney.

The only original evidence attempted to be brought before us (we mean by this, evidence not before the District Judge) is a copy of the newspaper article, written by the judge, which, having been refused to be received by him, reached us only as part of the bill of exception. We are not called on in this rule to mandamus the District Judge to hear the witnesses and to receive the rejected evidence, nor to review or annul the action of the District Judge in having revoked the order for bail after he had granted it. The case is not before us upon a writ of certiorari, nor upon an appeal. No witnesses have been summoned, nor asked to be summoned by the relator before this court. We are not in position to know who the witnesses are by whom he says he could have established the particular facts which he asserts he could have established by them in the District Oourt. What they would have sworn to had they been brought before us; what the importance and effect of the iacts which might have been sworn to would have been, had they been produced, we can not say. No affidavits nor depositions of witnesses' came up with the record. The mere fact that the relator offered in the lower court to prove certain facts, and that the court refused to allow proof of the facts, does not establish, in this court, on this original application for bail, the facts themselves. The very utmost effect of the bill would be to establish that certain acts had been attempted to be done by relator and refused to be allowed to be done in the District Oourt, and from this showing, to lay a foundation for action by this court, either for a certiorari, a mandamus or an ap - peal (were one permissible in such cases), or (o establish to its satisfaction a condition of affairs such as would cause it, in the exercise of its discretion, to entertain an original application for bail.

Viewing the application as a recourse to relief under original powers, the order which issued in this case was granted. We do not think the newspaper article annexed to the bill of exception, even if it were before us in proper form, should be considered. It is a mere personal, extra-judicial unofficial act. We would have expected that relator should have furnished to this court in some form the evidence which he says he unsuccessfully proffered in the lower court, but he has not done so. He has brought up only matters which occurred in the lower court of which the District Oourt had judicial knowledge without the necessity of formal introduction of evidence in respect thereto before it, and on which it must have acted in declining the second application for bail. We would have expected that the scope of the inquiry before us would have been enlarged beyond that which it had when the same matter was submitted in the District Oourt by, at least, the rejected evidence, but it has not been enlarged. We find matters precisely where the District Judge left them, and in acting on this application, as matters stand, we have to go over the same ground and examine the same reasons which the judge did — nothing more (State ex rel. Price vs. Sheriff, 43 An. 857, and authorities). Nothing additional is shown to us, unless the acts of the jud.e himself in originally having granted the order for bail, or in having subsequently revoked it, furnish matter for our original consideration. His course on both points stands unreversed and unattacked. We are asked, none the less practically, to give force and effect to the former order and to ignore the latter. This we can not do unless the order of revocation was without authority, and that it was not, whether it was erroneous or not. For the purposes of the present inquiry they have to go together, or not all. The acts of the lower eourt are not before us for adverse criticism in this proceeding.

The only matters really before the court under the condition of the evidence are, first, the effect upon a right to bail, of a mistrial in a case where a party has been indicted for murder, and the effect of that fact when supplemented by the fact that his cause has been continued for five months.

An examination of the authorities bearing upon the question has led us to the conclusion that the fact of a mistrial having taken place has not the full force which relator assigns to it. Church on Habeas Corpus, pars. 402 and 403, thus refers to the matter:

“ A mistrial because of a disagreement of the jury as to a capital offence does not establish per se that the proof is not evident, and that the accused is entitled to bail.” (Cittng Ex parte England, 23 Tex. App. 100, 127; State vs. Summons, 19 Ohio, 139; Ex parte Pattison, 56 Miss. 161, as explained in Ex parte Hamilton, 65 Miss. 98, 143).

“ One, or even two mistrials will not furnish the accused the absolute right to give bail, but where there has been one mistrial under favorable circumstances for the prosecution, and the conduct of the accused prior and subsequent thereto shows to the satisfaction of the court, that he has not and never had any thought of avoiding trial, and the evidence as preserved upon the trial is conflicting as to his guilt of the charge, he may properly be admitted to bail.”

From this it would appear that a mistrial coupled with other circumstances furnishes simply proper matter for the court to consider, in exercising its discretion, as to whether or not it will admit to bail. Ex parte Goans, 99 Mo. 103; People vs. Tinder, 19 Cal. 539.

In the case at bar, we know nothing of the evidence touching the guilt or innocence of the accused, and while, both by the record, which relator brings up, and the proffer of his testimony, it is made known to us that he did, as a fact, escape from the custody of the sheriff, the facts connected with his return áre merely asserted, and not attempted to be shown to us by evidence. The bill of exception does not, per se, establish the facts therein referred to, as we have already said.

In so far as the application to bail is based upon the fact that the trial of the accused has been postponed, it rests very greatly in the discretion of the court. The fact is one of those matters “independent of .the merits of the prosecution” which Ohurch refers to, in the consideration of which the conduct of the party plays an important part.

The object of imprisonment is to secure trial, and the escape of a prisoner weighs against him, when, under the circumstances in which relief is asked, relief is merely of grace, and not of absolute right. We are of the opinion that the application for bail as presented to us does not authorize us to grant the relief sought.

Application refused.

Dissenting Opinion.

Watkins, J.

This application is addressed to this court, and the object of relator is to obtain bail.

The application is made in pursuance of the provisions of Art. 89 of the Constitution, which expressly confers on this court the requisite jurisdiction to entertain it and grant the desired relief.

They are that “ the Supreme Court and each of the judges thereof shall have power to issue writs of habeas corpus at the instance of persons in actual custody, incases when it may have appellate jurisdiction.”

.This is a grant of original jurisdiction to this court acting as such, which is altogether independent of the supervisory jurisdiction, which is conferred upon it by Art. 90 of the Constitution.

A like jurisdiction is given to district judges within their respective districts. Art. 116.

Hence it is clear that either may act; that is to say, this court, or the judges thereof, or the judge of the district wherein the applicant is imprisoned.

The case presented is of a person who was indicted for murder. Was subsequently tried on that charge, and a mistrial was entered, the jury failing to agree. Was granted bail subsequently in the sum of 82000. Being, for the time, unable to give the requisite security, and suffering from illness, he was temporarily paroled; and, while thus paroled, made bis escape. The order granting bail was revoked.

Afterward he returned and was again incarcerated in jail. . At the next issuing term of court the case was fixed for trial; and on the following day the fixing was set aside on the suggestion of the District Attorney. During the same term of the court the defendant made a formal application for the fixing and trial of the case, but it was refused by the court, and a continuance granted on the written application of the District Attorney.

At this time the defendant made application for bail, and the judge declined to entertain it, or to consider it at all.

To this deolination to act the defendant reserved a bill of exceptions, and the judge appended his reasons.

In his present petition the relator sets out this state of, facts, and prays that this court, acting as such, grant him relief. In response the District Judge and District Attorney have each made a statement of facts, differing in no essential particular from the judge’s statement in the bill of exceptions.

To this application is appended a certified copy of the entire record of the State vs. Vickers, including the bill of indictment, minutes of court, bills of exception, order fixing amount of bail, and the subsequent cancellation of same; and also the State’s application for a continuance, the defendant’s subsequent application for bail, and the District Judge’s reasons for declining to entertain the same— thus fully exhibiting all the proofs necessary or useful in enabling us to decide the question presented for the determination of this court.

For the purpose of accuracy I have appended the reasons the District Judge assigned, viz.: “ The above statement might imply that the court had, on defendant’s application, gone into the question of bail; if so, it is that far wrong. The defendant asked the court to hear and consider an application for bail, and to receive evidence on the question, which, on objection by the District Attorney, the court declined to do. The defendant then stated his purpose to offer, if the question was opened, the evidence mentioned above. The court was of the opinion that where the witnesses had left the State, through the instrumentality and the procurement of those working for and managing the defence (not the lawyers, of course), as the court was satisfied is the case here, and the State was then forced to apply for a continuance, it was not a proper case for the court to go behind the indictment and inquire into the question of bail. It is true that an order for bond was once granted after hearing the evidence at the mistrial, and afterward set aside, but in granting that order the court was largely influenced by the fact that the prisoner had originally surrendered the day after the killing and shown no disposition to avoid a trial, and one trial had been had resulting in no verdict. He failed to give the bond and made his escape by feigning sickness and deceivingOthe doctors and deputy in charge of him; went to the woods and avoided arrest until the next court passed (August term, 1894), and now a trial is again defeated by the means above described and set forth in the affidavit of the District Attorney. Under these circumstances the court felt constrained to refuse to go into the question of bail.”

In my opinion this court is fully vested with original jurisdiction to act, as the charge made under which the defendant is indicted is murder, of which it has appellate jurisdiction. Oonstitution, Arts. 81 and 89.

Prom the statement of the District Judge it is clear that he declined to entertain the application at all, for he says:

The above statement might imply that the court had, on defendant’s application, gone into the question of bail; if so, it is that far wrong. The defendant asked the court to hear and consider an application for bail, * * which on objection from the District Attorney, the court declined to do.”

The Oonstitution declares that “all persons shall be bailable by sufficient sureties, unless for capital offences, where the proof is evident or presumption great." Art. 9.

It has been frequently held that the finding of an indictment is “ a presumption great,” which precludes the accused from the benefit of bail.

But it has also been frequently held that in the event of a mistrial and the failure of the jury to agree, that presumption is overcome. It has been held that in case the defendant demands a trial and it be refused, and a continuance is granted at the request of the State, the presumption is overcome.

In this case not one but both of these incidents occurred.

Recognizing the right of the defendant to bail, under these circumstances, the District Judge granted an order of bail, and fixed the amount at two thousand dollars. But six months later he revoked the order, on the ground that the defendant had “ escaped and shown a disposition to avoid a trial.”

But in defendant’s bill of exceptions, which was taken to the judge’s declination to entertain his application for bail, it is stated that “after his alleged escape, he voluntarily surrendered; and this statement is not denied by the judge in his reasons for refusing the request. On the contrary, the fact is admitted, for he says: “He failed to give bond and made his escape; * * * went to the woods and avoided arrest until the next court had passed,” etc.

But he was again incarcerated in jail, and at a subsequent term of court the case was fixed for trial at the instance of the District Attorney.

It is therefore clear that in so far as the escape had any prejudicial effect upon the presumption of the guilt of the defendant, the same was removed by his subsequent surrender.

This question was squarely decided in the recent case of State vs. Stewart, 47 An. 410.

In that case a motion was made to dismiss the defendant’s appeal, on the ground that he had escaped from jail subsequent to the granting of the order of appeal, and to the motion was appended an ex parte affidavit of the sheriff, making proof of that fact. In reply the defendant’s counsel filed with the record a subsequent affidavit of the same officer, showing that the defendant had voluntarily surrendered himself.

On these two affidavits this court assumed full and complete appellate jurisdiction of the appeal, overruled the motion, decided the case on its merits, reversed the judgment appealed from, and remanded the case for a new trial.

In my opinion that decision is correct.

But in view of the fact that in the exercise of this court’s appellate jurisdiction it examined and passed upon that issue, how can it decline to do so now in the exercise of its original jurisdiction?

And if the facts be examined and passed upon — as I think the court is bound to do — how can a like conclusion be avoided? That is to say that the defendant’s subsequent surrender neutralized the prejudicial effect of his previous escape.

Disembarrassed of that impediment the defendant is quite as much entitled to relief as Stewart was.

In so far as the further statement of the judge to the effect that certain “ witnesses for the State had left the State through the in-strum entality and the procurement of those working for and managing the defence1' is concerned, I do' not think it entitled to consideration. Surely an accused person can not be denied his constitutional right to bail on the supposition that his friends have influenced some of the witnesses to leave the State.

On this hypothesis he might be doomed to perpetual imprisonment.

For these reasons I dissent from the opinion of the majority.


author: Nicholls, 0. J.

text:
    No. 11,720.
    Heirs of Similien La Branch vs. Fergus Montegut.
    when property mortgaged is described as “ being on the left hank of the Mississippi river and as having a certain front on the said river,” the object intended to be mortgaged must be held .to be the same as that which would have been intended by the parties to have been conveyed in an act of sale under the same description.
    where property sold is described as “ a sugar plantation on the left bank of the Mississippi river having a front of one-fourth of one arpent, more or less, on said river by eighty arpents in depth,” the purchaser is entitled to delivery to the full extent of the premises, as specified in the contract, and to insist upon the call for the river as the front boundary. He has the right to exact a front on the river, and by that term is meant not a front exceptionally on the river as resulting from extreme high water or flood, but one to he found on the river in its ordinary stage of high water.
    A PPEAL from the Twenty-first Judicial District Oourt for the Parish of St. John the Baptist. Rost, J.

      Branch K. Miller and Joseph F. Poché for Plaintiffs, Appellants.

      Thomas J. Semmes & Legendre for Defendant, Appellee.
    Argued and submitted March 2, 1895.
    Decided March 25, 1895.
    Rehearing refused April 22, 1895.
    On the 23d of March, 1871, the plaintiffs, by act before Guyol, notary public, mortgaged in favor of Octave Hymel, property described in the act as “a certain tract of land or sugar plantation situated in the parish of St. John the Baptist, on the left bank of the river Mississippi, at about thirty-nine miles above the city of New Orleans, measuring eleven arpents front on the said river by a depth of eighty arpents.”
    In July, 1878, Hymel obtained an order for-the seizure and sale of the mortgaged property, which, under the order, was seized by the sheriff of the parish of St. John, in October, 1878; and after having been divided into lots, under the then existing laws, was sold on •October 4, 1873, to different parties. The defendant, at that sale, became the purchaser of four of the lots.
    In his seizure the sheriff described the property as a certain tract of land situated on the left bank of the Mississippi river, measuring eleven arpents more or less front on said river by eighty arpents in depth, and as having been seized, together with all the rights, servitudes, etc., of said lands.
    Four deeds of sale were executed by the sheriff to the defendant-In each of these deeds, the sheriff recites that the property seized had been divided by the defendants into lots not less than ten, nor more than fifty acres, as per plan deposited in his office; that said lots numbered from one to thirty-six, each lot measuring one-fourth •of one arpent more or less front on said river (Mississippi river) by eighty arpents more or less in depth. That after legal notice he had advertised the tract of land with all its rights and servitudes for •sale. That after crying the said lots (therein described) by number, and as measuring one-fourth of an arpent more or less front on said river by eighty arpents more or less in depth, with all its rights and servitudes, he had adjudicated the said lot to Fergus Montegut (the defendant).
    The purchaser took possession of the property adjudicated to him, and has held the same ever since. There was judgment for defendant, and plaintiffs appealed.
   The opinion of the court was delivered by

Nicholls, 0. J.

The evidence shows that at the time of the granting of the mortgage a levee ran along the river front, and that beyond the levee there unquestionably existed a batture. That in-1872 or 1873 a new levee, further to the front, was built, the effect of which was to bring the batture inside of the general line of levees as then established on the front. The testimony does not show by whom this new levee was constructed, but we assume it was pub up by the public authorities, and to conform to public requirements at that time. The batture in question, prior to the building of the new levee, was, during the period of high water in the Mississippi, covered by water to the depth of two or three feet, and even in low water portions of it remained covered, by reason of there being sloughs or low places on ib. The precise stage of the water in the river which uncovered the batture, or that which had the effect of overflowing it, was not shown. In its present condition it seems still to be covered, when the river is up, by seepage and rain-water combined. Even in low water, and as matters now stand, the bat-ture can not be utilized by the defendant for hauling his freight to the boats upon the river in consequence of its muddy condition. The act of mortgage neither referred to a plan, nor to the levee, nor to a road, as the front boundary of the plantation; on the contrary, it expressly gave the river as that boundary. The property was seized and sold according to the mortgage description. When property mortgaged is described as being “ on the left bank of the Mississippi river, and as having a certain number of arpents front on the river,” we must hold the object intended to be mortgaged to be the same as that which would have been intended to be sold in an act of sale under a similar description.

In Morgan vs. Livingston, 6 M. 224, this court said:

“From a very close examination of the books of the Land Office of the United States, which have been submitted to us, and the depositions of surveyors in this case, it is clear that in French and Spanish conveyances, both public and private, the words face au fleuve, face frente al rio, frente — front to the river, or front, exclusively designates estates bounded by the river, which in this country are otherwise called riparian, bound to the repair of the road, its ditches, bridges and levees, and to supply ground for either or the whole of these, when that which they cover is carried away by the water. We are therefore bound to take the expression frente al rio in the deed as evidence of the intention of one of the parties to convey, and of the other to acquire a riparian estate, unless by taking it in this sense we are led to an incongruous or absurd result. * * * We conclude that on the inspection of the deed, the words front to the river used therein were intended to denote a riparian estate bordering on the river.”

In the ease cited, referring to the claim that the existence of a public road in front of the trapezium of land, which had been sold, was evidence of an intention that the land sold should have another boundary than the river, the court said: “If the trapezium had been immediately on the river, and no road had intervened, the qualified property which riparian owners have in the banks before their field would have passed to Poeyf arre (the vendee) as an accessory of the trapezium, because in the sale of a field the sale of the bank is understood as a part or accessory of the field. En la venta del fundo se intende vendida la ribera como parte de el; si se vende el fundo que esta immediato alia ribera, también se incluye como appen-diee del mismo fundo. 3 Cur. Ph. ill loco citato, No. 113.

“ The banks of the river are not sold, but rather pass as an accessory of the land sold. Bipae non venduntur, sed magis acce-dunt rei venditse, Osepola de serv. rust. The property of the banks belongs to those to whose fields they are contiguous. Proprietas earum (riparum) est quorum prsediis hserent. ff. 1, 8, 5, Code Civil 96, Art. 8. They must be the property of the riparian owners without being included or mentioned in their grants, for if they were only when included there would be no use for the' provision in the law; it would be idle. If, therefore, when the sovereign grants land contiguous to the river, without mentioning the bank, this passes, it must do so as an accessory. If the bank pass as an accessory in the grant of the sovereign, it must also in the deeds of private individuals.

“The bank passes with the field, even when there is an intervening public road. Bipa cedit fundo, 1; riparum ff. rer. divis. Inst, eod. tit. ub. gloss, dicitverum si via est media. Bipse respectu pro-prietatis sunt illorum quorum prsediis hserent, sed quid si via esset in medio, inter-flumen et agrum vel domum? Besponde idem ut ripse sunt eorum. Csepola, tract. 11; de serv. rust. cap. 26, in ripa.

“If there be a public road between a field and the river, still that which is made by alluvion accrues to the field.”

Art. 457 declares that “ the banks of a river or stream are understood to be that which contains it in its ordinary stage of high water, for the nature of the banks does not change, although for some cause they may be overflowed for a time. Nevertheless, on the borders of the Mississippi and other navigable streams, where there are levees established according to law, the levee shall form the banks;” and Art. 4SS, that * * * “ the ownership of the river banks belongs to those who possess the adjacent lands.”

In Morgan vs. Livingston the court said: “The levee, then, as well as the batture under water, is a part of the bank, and the bank is a part of the river, which consists of three things — the water, the bed and the bank.”

In the case at bar there can be no discussion as to what the front boundary was declared to be — it was not, as in the case we have just been quoting from, described as fronting the river, or fronting to the river, but as property “ on the left bank of the Mississippi having a certain front on that river.” The mortgagee was entitled to the benefit of his contract to the full extent of the premises as specified in the contract, and a purchaser under a foreclosure of the mortgage was entitled to a like delivery to the full extent of the premises as specified, and to insist upon the call for the river as the boundary. Guglielmi vs. Geismar, 47 An. 152; C. C. 2491. It was his right to exact a front on the river, and by that term is meant not a front exceptionally on the river, as resulting from extreme high water or floods, but one to be found on the river at its ordinary stage of high water.

As the ownership of the batture by passing to the defendant, under and through this legal right, passed out of the plaintiffs at the same time, it is a matter of no legal interest to them whether the transfer was effected by the batture falling directly under and within the description of the thing mortgaged as an existing part of the body of that very thirg, or whether it was transferred silently, without express mention, and merely as an accessory of a principal thing mortgaged. In either event it ceased to belong to plaintiffs. W© think the District Court correctly stated that the issues in this case-were similar to those raised in the case of Hollingsworth vs. Chaffe, 33 An. 547.

We have carefully examined the record, and think the conclusions of the District Judge as to the facts were correct. We see no error in the judgment appealed from, and it is hereby affirmed.

Rehearing refused.


author: Nicholls, O. J.

text:
    No. 11,732.
    Leopold M. Layman vs. Mrs. Victoria Vicknair, Wife of Felix Lasseigne, et al.
    Though under the rules of the commercial law equities might be barred as against the personal liability of the maker of a promissory note, it does not follow that the equities could not be invoked against the enforcement of a mortgage securing the note. Mortgages are not negotiable. When the public records . disclose the existence of equities of facts from which presumptions of their existence flow, parties taking mortgages are put upon inquiry, and are not entitled to protection of their mortgage rights solely by reason of the fact that they are the holders of negotiable notes transferred to them by endorsement before maturity for value and in due course of trade. When protection is given to holders of mortgages against equities it rests not upon the negotiability of notes or mortgages, but upon principles of law and equity, which . forbid that the binding force of mortgages should be destroyed by secret equities of which the holders of the mortgage had no notice, and for the ascertainment of which the public records furnished him no means of information.
    APPEAL from the Eighteenth Judicial District Court for the Parish of Lafourche. Caillouet, J.

      Olay Knobloch & Son for Plaintiff, Appellee.

      L. F. Southon and Beattie & Beattie for Defendants, Appellants.
    Argued and submitted March 13, 1895.
    Decided April 8, 1895.
    Victoria Vicknair, wife of Felix Lasseigne, was one of eight heirs of Valery Vicknair and his wife Adele.
    Felix Lasseigne, her husband, at various dates, bought from the seven other heirs their interest in a certain plantation in Lafourche. Lasseigne and wife were separated in property, and through this purchase her husband became the owner of seven-eighths and she of one-eighth of ■ the property known as the “ Vicknair” Place. The husband owned a small place known as the “ Lasseigne ” Plantation, where husband and wife resided. The “ Lasseigne ” plantation was just below one owned by Leufroid J. Troselair. Troselair owned also a small place contiguous to the “Vicknair " plantation.” In the early part of 1889 Lasseigne, the husband of the defendant, Victoria Vicknair, called onTroselair, and proposed an exchange of the “ Vick - nair ” for the smaller “ Trosclair ” tract, so as to place those respective lands in one body. Both Trosclair and Lasseigne owed mortgage debts on their respective properties, but the wife’s one - eighth seems to have been unaffected by incumbrance. It was proposed, after the exchange should have taken place, to transfer the mortgages; the Trosclair tract to become burdened with the debt of Lasseigne, and the “ Vicknair” with that of Trosclair. The ownership by Mrs. Lasseigne of one-eighth in the property about to be exchanged with and transferred to Trosclair stood in the way of the contemplated arrangement. The difficulty was sought to be obviated by Mrs. Lasseigne selling, on the 9th of March, her one-eighth interest in the Vicknair plantation to one Anatole Naquin, nominally for cash, and on the same day, before the same witnesses, Naquin sold this same interest to the husband, Felix Lasseigne. The sale to Naquin was a pure simulation, made for the purpose of selling and transferring the wife’s eighth interest to her husband, to the end that the exchange agreed upon could be consummated.
    On the 27th March, 1891, the exchange mentioned between Las-seigne and Trosclair was perfected by the former selling the Vicknair tract to Trosclair and the latter selling to the former the small Trosclair tract. The mortgages on the two places were transferred over from one to the other.
    In the exchange or sale of the two properties there was no consideration paid. Each plantation was the equivalent for the other. In April, 1891, the wife brought suit against Trosclair, alleging that the sale from her to Naquin was an absolute nullity, the sale being simulated, and made for the purpose of selling her interest to her husband; that the sale was, in fact, a direct conveyance to her husband. She further averred that she was induced to make said sale to Naquin by coercion of her husband. The defendant set up title under her husband, alleging his good faith in the transaction. The District Court rendered judgment in favor of defendant, and plaintiff appealed. On appeal this court held that it could not treat the defendant Trosclair as an innocent third party who acted in good faith upon the apparent validity of the transaction; that he knew the sale made to Naquin was a simulated one made for the purpose of placing title to the entire property in the name of the husband in order to be transferred to him. For this and other reasons assigned the judgment oí the District Court was reversed and judgment was rendered in favor of the plaintiff, decreeing her to be the owner of the property described in her petition, and ordering her to be placed in possession of the same. In view of the fact that parties claiming mortgages on this property were not made parties to the action, their right was reserved to assert whatever claim they might have on the mortgaged property. Vicknair vs. Trosclair, 45 An. 373.
    The present suit is brought by L. M. Layman, alleging himself to be the bona fide holder and owner of two promissory notes executed by Leufroid J. Trosclair, dated March 27, 1889, payable to his own order and by him endorsed, one and two years after date, and paraphed to identify them with an act of sale and mortgage passed before Coulon, notary, each of said notes being for the sum of twenty-six hundred and twenty-five dollars. That he acquired the notes for value before maturity; that by the said act before Coulon, Felix Lasseigne sold to Leufroid J. Trosclair certain property described therein. That the two notes were given to represent part of the price and consideration of the sale, and that payment of said notes was secured in the act of sale by special mortgage and vendor’s privilege, in favor of any holder of the notes upon the property sold. That Mrs. Victoria Vicknair, wife of Felix Las-seigne, claimed to own a portion of the said property. He therefore prayed that notice to pay be served on Trosclair, and notice also be given to Mrs. Lasseigne and her husband, and that after due proceedings a writ of seizure and sale issue directing the sheriff to seize and sell the property to pay his claims. An order of seizure and sale having been ordered to issue, the sheriff seized the property. This proceeding, which was via exeeutiva, was changed by the plaint ff to via ordinaria, praying for pei-sonal judgment contradictorily with Leufroid J. Trosclair, Mrs. Felix Lasseigne and her husband for the amount of his claim with recognition of his mortgage and privilege, and for a sale of the property to satisfy the same.
    On the trial it appeared that the plaintiff held the notes as collateral security for the payment of a note held by him against Ernest Roger.
    In her answer Victoria Vicknair (Mrs. Lasseigne), defendant, averred that she was the sole and undisputed owner of the one-eighth of the tract of land sought to be sold and claimed to have been mortgaged, having inherited the same from her father and mother. That her title to the same had been declared valid and binding by a decree of the Supreme Court in the suit entitled Victoria Vicknair, wife of Felix Lasseigne, vs. L. J. Trosclair, said Tros-elair being the same person who is her co-defendant in the present suit (45 An. 373). She then as against the plaintiffs reiterates the allegations made by her in the said suit against Trosclair — the simulation of the sale by herself to Naquin — the coercion exercised upon her by her husband to make her consent to that sale — the object- of that sale and its ultimate effect to deprive her of her property without consideration, and one really made to her husband, and charges that all these facts were well known to the plaintiff, who she avers was a mere party interposed to do away with her rights and hold her and her property bound by the obligations and contracts of her husband. She alleges that the acts of all of the parties, including the plaintiff, were fraudulent, illegal and in utter bad faith, designed to1 injure her and her property. She specially denied that the plaintiff was in good faith at the time he acquired the notes, or that he acquired the same before maturity, or for a valuable eon - sideration. She averred that the very act of sale and mortgage on which plaintiff was basing his suit show-ed the fraud and bad faith which she charges, as it specially declared the title of her husband, who pretended to sell the property therein, was derived from the heirs of Valery Vicknair and his wife, Adele Vicknair, one of whom was herself, the wife of the vendor in the said act, and that all parties were bound to know he could never acquire a legal title. She avers that she is in possession of the land, having been placed in possession by an order of court.
    The District Court rendered a judgment in favor of the plaintiff, against Trosclair, for the full amount claimed, and against both defendants (L. J. Trosclair and Mrs. Lasseigne), recognizing as valid and executory against- them, and binding upon the whole property claimed to have been sold and mortgaged, the special mortgage and privilege asserted by the plaintiff, and decreeing that the whole of the-same be seized and sold to pay and satisfy she judgment then being rendered by preference, and that out of the net proceeds of sale, after payment of all costs and taxes, the plaintiff be paid by preference the amount due him on the personal note of Ernest Roger, for which the notes sued on are pledged. -•
    Mrs. Victoria Vicknair, -wife of Lasseigne, appealed.
   The opinion of the court was delivered by

Nicholls, O. J.

The two notes upon which plaintiff sues are those mentioned in the act of sale of 27th January, 1889, from Felix Las-seigne to Leufroid J. Troselair, representing part of the purchase price of the property then sold, secured by special mortgage and vendor’s privilege, and as having been then delivered by the notary to the vendor, Lasseigne. In point of fact these notes represented no part of the price. Ernest Roger, one of the witnesses to the act between Lasseigne and Troselair was then a creditor of Troselair to the amount of the two notes, and his indebtedness was secured by mortgage upon the property which the latter sold to Lasseigne (or in point of fact exchanged) for the Vieknair tract. When the exchange was made one property was exchanged as being of equal value with the other, but Roger having raised his mortgage from the land it had previously affected, it was necessary that he should be secured on the property to be substituted in lieu of it. In order to accomplish this the two notes mentioned were made and recited as being part of the price, when in reality they represented simply the indebtedness of Troselair to Roger, which was then being transferred over as to the mortgage securing it to the newly acquired property.

Roger testifies he acquired the notes on the 27th January, 1889, and the probability is (the recital of the act to the contrary notwithstanding) that they passed directly from Troselair to him. He says that he transferred the two notes to Layman a few days before the first note fell due as collateral security to secure an amount he had borrowed from him. The evidence is not positive on the point, but we are inclined to think that Roger knew all the facts of the case throughout, although he may not have appreciated fully all their legal consequences. There is no questioning the fact that at the date of the sale from the husband, Lasseigne, to Troselair, one-eighth of the property which the vendor undertook to sell, and the purchaser, in acquiring, undertook.to mortgage, belonged to the wife. We are called on to determine here what effect, the mortgage given on that portion of the property has against her, the actual owner. It is pressed upon us that both Roger and Layman acquired the notes before maturity for value in good faith and in due course of trade, and on the faith of the public records, and that they are not to be affected by latent equities or by fraud in other parties. If plaintiff’s position were maintained, it would not be as the result of the application of the rules of the commercial law, cutting off the equities which existed between the original parties to promissory notes by reason of their transfer by endorse - ment before maturity for value to innocent third parties. We have repeatedly held that though under the rules referred to the equities might be barred as against the maker’s personal liability upon a note, yet the mortgage securing it not being negotiable, those equities might be invoked against the enforcement of the accessory obligation. As late as January, 1893, we said in Bank vs. Flathers, 45 An. 78: “Mortgages are not negotiable. We have never to our knowledge held the contrary.” It is true that in that case this court allowed the mortgage to be enforced, notwithstanding defences which might have been good between the original parties; but we took especial care to say: “ Out- opinion rests upon no assertion of the negotiability of mortgages, but upon other principles of law and equity which forbid a man who, as a security for negotiable notes, has executed a mortgage which he had the full right and capacity to make on property belonging to himself by an act suggesting on its face no defect duly recorded and importing confession of judgment in favor not solely of the mortgagee, but of any future holder of the note, to impair its binding force by pleading secret; equities created by his own fault, negligence or imprudence, and of which the subsequent holder of the note had no notice and no means of information. When cases arise in which the above elements, or some of them, are missing, we will determine them according to their particular facts.”

In Lester vs. Connelly, 46 An. 340, where a married woman separate in property sold by authentic act her paraphernal property, taking notes from the purchaser, secured by special mortgage and vendor’s privilege, we ordered the enforcement of the mortgage and privilege (the notes having fallen into the hands of innocent third parties), although the sale was a disguised mortgage for the benefit of the husband. The decision in that case was based upon the fact that the wife had the absolute legal right with the authority of her husband to sell her paraphernal property, and to dispose of the proceeds as she might deem fit. We said “ the paraph required the holder to look to the registry of the act with which the notes were identified, which had for its ‘object the protection of third parties. The registry of the act of sale informed the defendant that plaintiff, a married woman, separate in property from her husband, with his authorization, had sold to one Leveque her paraphernal property, part for cash, and the balance on terms of credit, evidenced by notes. There was nothing in the act to put him upon inquiry, or which remotely suggested that the sale was in fact a mortgage exe - cuted for the purpose of raising money for the husband’s benefit. There was no duty imposed upon him to inquire into what disposition she made of the proceeds of the sale.”

The case just cited differs in material, respects from the one at bar. Mrs. Lasseigne did not sell the property to Trosclair with part of the price secured in her favor by mortgage. It was sold, or claimed to have been sold, by the husband, and the mortgage notes were given to neither husband nor wife, but to a creditor of the vendee himself. The original holder of the notes, Ernest Roger, not only, in our opinion, knew of the facts of the case, but he additionally applied to Coulon, the notary, before whom all the acts were passed, for information and who unquestionably had full knowledge of the exact situation. Layman, the plaintiff in this case, says that he alsó, before taking the notes, sought information from Ooulon, though he says he was informed by him that everything was right.

In the act of sale from the husband Lasseigne to Trosclair, we find the description of the property sold followed by the words : “Being the same property acquired by vendor of the heirs and legal representatives of the late Valery Vicknair and his wife Adele Vicknair, in the proportion of the one undivided eighth from each of said heirs by public and authentic acts, all duly inscribed in the records of the clerk’s office of this parish.”

Valery Vicknair and Adele Vicknair, here referred to, were the father and mother of Mrs. Lasseigne, and she was one of the eight heirs from whom the vendor declared he had purchased.

Referring to these words and the reliance placed upon them by counsel of the wife, plaintiff’s counsel say: “ It is argued that the world was put upon notice, but the court could not do otherwise than hold that they must be taken as a whole, and that any lawyer who would have been employed to trace title or examine records as to mortgages an 1 incumbrances would certainly have attached more importance to reference by conveyance books, numbers and pages thereof, than to the phrase “ acquired of the heirs and legal representatives of the late Valery Vicknair and his wife Adele Vicknair.” This last phrase is a mere ipse dixit of the notary, which may or may not be true, but reference to the conveyance books by numbers and pages furnishes information of which all lawyers avail themselves, and by which they are governed in their examination of records as sending them at once to reliable and authentic data. Taken as a whole, any lawyer of experience would at once have taken, not the ipse dixit of the notary, but the conveyance books to which special reference is made by number and page, and he would readily have ascertained that reference to conveyance book No. 24, p. 872 et seq., was a sale, not by the heirs of Valery Vicknair and wife, one of whom was the co-defendant, Mrs. Felix. Lasseigne, but a sale by Anatole Naquin to Felix Lasseigne, hence Felix Lasseigne did not derive title to his wife’s one-eighth from his wife directly.

In looking up titles and mortgages parties are held to examine act by act, mortgage by mortgage, and not to place any blind faith in references to books, numbers and papers, much less to the mere ipse dixit of a notary.

A copy of the act of sale last mentioned being in the record, we have examined the same (as it was the duty of all parties relying exclusively “ on the faith of the public records ” as the ground for maintaining their rights to have examined it), and in this act from Naquin to the husband we find it declared that “the property then being conveyed was “ the same property acquired that day before the undersigned notary of Mrs. Felix Las-seigne.,'> The record would therefore have disclosed the fact that upon the same day, before the same notary, and before the same witnesses, the property which ostensibly passed from the wife to Naquin for cash, ostensibly passed at once from Naquin to the husband.

A record showing such facts was not of such a character as to form the basis of a claim by any one who dealt with the husband or with Trosclair (the vendee from the husband) that he had been deceived into contracting with them through the condition of the public records, and that “his mortgage rights could not be defeated by secret equities between the original parties of which neither the act nor the public records afforded any notice or means of information.” We are of the opinion that when the records show on their face, as it did in this instance, that the property once belonged to the wife, and that when it passed ostensibly from her it went afterward into the apparent ownership of the husband, any one looking at the acts would have been, or should have been, at once placed on his guard as to the reality and good faith of the transactions. We do not mean to say that a case might not arise where property which once belonged to the wife could not properly and legally be subsequently owned by the husband, but any one dealing with property under such circumstances must rely upon something more than the mere face of the record; he must be prepared to sustain the. title by an affirmative showing, against an attack made upon it by the wife, on the ground that she had been defrauded of her rights for the benefit of her husband, or her husband’s creditors. The time at which either Roger or Layman acquired the notes sued on plays no part in the decision of this case. We have to deal not with the notes, but with the condition of the property as it appeared of record. For the purpose of the mortgage, each and both were bound to make an examination of the record. Had the mortgage which is sought to be enforced here been placed upon the property by Naquin, while in his apparent ownership, under the sale from Mrs. Lasseigne, matters would be different from the actual ease where the property had passed through the husband before the mortgage was granted. While we realize the importance of construing the law so as to protect the general public in their dealings “on the strength of the public records,” we can not consent by construction or from motives of supposed public policy to render nugatory positive laws enacted for the benefit of married women. We have gone as far in that direction as we properly can. Parties defending as against the actual rights of married women, under estoppel claimed, from the condition of the records, must have examined the records, and will be held to have known, or as bound to have known, what appears from them, and to a knowledge of the presumptions which flow from the facts as disclosed by them. If the records furnish means of information, the information must be sought for.

For the reasons herein assigned, it is hereby ordered, adjudged and decreed that the judgment appealed from be and it is hereby annulled, avoided and reversed, in so far as it recognizes and orders to be enforced the special mortgage and vendor’s privilege declared upon by the plaintiff upon the property transferred on the 9th of March, 1889, by two public acts before Henry Nicholas Ooulon, notary public, from Victoria Vicknair, wife of Felix Lasseigne, to Anatole Naquin, and by Anatole Naquin to Felix Lasseigne, being the same property claimed by the defendant herein, the said Victoria Vicknair, as having been by her inherited from Valery Vicknair and Adele Vicknair, his wife — her father and mother; and,

lb is now ordered, adjudged aud decreed that the demand of the plaintiff, Leopold M. Layman, in so far as it concerned the defendant, Victoria Vicknair, wife of Felix Lasseigne, and affected or concerned the property just above mentioned, be and the same is hereby rejected, and the act of special mortgage and vendor’s privilege, evidenced by the act of sale and mortgage passed before the said Ooulon, notary public, on March 27, 1889, be and they are hereby declared to be null and void, in so far as they affected the said property, and the evidence of the’ said mortgage and privilege are hereby ordered to be canceled and erased from the records of the parish of Lafourche, in so far as they affect the said property. Oosts of both courts to be paid by the plaintiff.


author: Nioholls, O. J.

text:
    No. 11,747.
    State of Louisiana vs. R. B. Edwards.
    There are many circumstances which, being shown, would authorize the introduction of parol evidence to prove the contents of written instruments’ Where such evidence has been admitted, without objection, a refusal of the court to charge that the evidence was “illegal” furnishes no ground of complaint when the bill of exception reserved does not negative the existence of facts which would authorize the introduction of secondary evidence, nor show wherein the evidence was “ illegal.”
    The refusal of the court to permit an accused, charged with having violated a criminal statute prohibiting the sale of liquor within three miles of Ruston College, to show tnat the college building was destroyed, was correct — it not being averred that the building was not in existence when, the act charged was committed, nor that the operations of the college were broken up by the destruction of the building. The law did not become inoperative by that fact.
    APPEAL from the Third Judicial^District Court for the Parish of Lincoln. Barksdale, J",

      M. J. Cunningham, Attorney General, and James D. Everett, District Attorney, for Plaintiff, Appellee.

      Kidd & Vernon for Defendant, Appellant.

      Submitted on briefs March 30, 1895.
    Decided April 8, 1895.
   The opinion of the court was delivered by

Nioholls, O. J.

Appellant having been convicted underran information which, in the first count, charged him with selling liquor without license, and in the second, with selling liquor within three miles of Ruston College, has appealed. We find in the record two causes of error assigned, presented in the bills of exception.

The first bill recites that “Whereas, on the trial of this cause, it was shown by parol evidence that defendant held a revenue license to sell whisky in Ruston, La., and. defendant requested that the court charge the jury that the nature of a written document could not be shown by oral testimony, the court refused to give said charge. Defendant excepted to the ruling and filed his bill of exceptions.”

The court’s statement, annexed to the bill, is “that during the trial one witness swore that defendant had a United States license to-retail liquor in the town of Ruston up to July 1, 1894. The defendant has shown him the license. That counsel for defendant made no objection to the admission of the testimony, but did ask the court to charge the jury that it was illegal. That the court refused to do so, because the evidence was only secondary, not illegal evidence, and had been heard without objection.”

There are many circumstances which, being shown, would authorize the introduction of parol evidence to prove the contents of written instruments. The bill taken does not negative the existence in this ease, of such circumstances, nor show wherein the evidence was “ illegal.” Where the court on application to it to charge that certain evidence which had been omitted on the trial was illegal, and should be excluded, “refuses to so charge, and it is shown that the evidence was received without objection, and the only objection to be urged was that it was “ secondary ” evidence, the ruling of the court must be sustained. The objection must be held to have been unfounded, and also, that it was urged too late.

The second bill is to the refusal of the court to permit defendant to prove “ the destruction by fire of the Ruston Oollege prior to the alleged time of selling whisky, within three miles of said college; •on objection made by the State that “the testimony was irrelevant and illegal.” The court assigned as its reasons that the burning of the buildings belonging to the Ruston College was irrelevant; that the temporary destruction of a building can not render a criminal statute nugatory and inoperative. That there was no effort, or announced intention to prove that the Ruston College was nob then in operation, or was at the time the crime was alleged to have been committed, nor was there any question as to distance. The claim urged was that if the college building was destroyed, the act of 1890 (prohibiting the sale of whisky within three miles of Ruston College) was suspended, and that the evidence tendered was a perfect defence to the second count.

For the reasons assigned by the court, its ruling was undoubtedly correct.

Judgment affirmed.


author: Watkins, J.

text:
    No. 11,684.
    Gilkerson-Sloss Commission Company vs. Yale & Bowling, in Liquidation.
    Damages tor an illegal seizure will not be awarded in favor of the claimant of the property in case his title be involved in litigation, or doubt reasonably exist as to its realty.
    The law favors the right of a creditor, and will protect him in every reasonable and proper effort to collect his debt, and will only mulct in damages those who resort to illegal or wanton acts to unduly and illegally coerce payment. •
    The owner whose property has been seized as that of another, and who is compelled to go into court to protect his rights, is entitled to be reimbursed by the seizing creditor a reasonable amount.for counsel fees.
    APPEAL from Fifth Judicial District Court for the Parish of More-house. Potts, J.

      Newton & Hall, G. W. Ellis and Bussey & Naff for Plaintiffs, Ap-pellees.

      E. T. Lamkin for Defendants and Appellant's.
    Argued and submitted March 14, 1895.
    Decided April 8, 1895.
   The opinion of the court was delivered by

Watkins, J.

The plaintiff company makes claim for four thousand dollars as the amount of damages it sustained in consequence of an illegal seizure of its property under the circumstances which are detailed in the petition. The damages claimed having been liquidated by a bond of indemnity, which was executed by the defendant in favor of the sheriff, and by him duly endorsed to the plaintiff; both this defendant and his surety were cited and judgment in solido prayed for against them for the amount specified.

The claim and averment of the petition mainly are that the defendants caused to be made an illegal seizure of their property, and by virtue of a writ of fieri facias which was issued under a judgment in the suit entitled Yale & Bowling, in Liquidation, vs. Bond & Williams, the declaration of the petition being “ that said seizure was without any cause whatever and a wrongful and illegal act; and said Yale & Bowling, in Liquidation, thereby damaged your petitioners in the sum of four thousand dollars, as hereinafter specifically set forth, which they with their surety were bound and obligated to pay under the said bond.”

The defence is a general denial, admitting the seizure, coupled with the special allegation that instead of same “ being maliciously made, as alleged, (it) was done after positive and reliable information (had been obtained) that the property seized belonged to Bond & Williams, their judgment debtors, in whose possession it was at the time, and had been long prior thereto, as the owners.”

On these issues the case went to trial, and it resulted in a judgment against the defendants for the sum of five hundred and thirty-seven dollars and fifty cents, and from that judgment they have appealed.

In this court plaintiff filed an answer and asked that the judgment of the lower court be so amended as to award it the full amount of four thousand dollars originally claimed.

The seizure complained of in this suit provoked quite a serious litigation, which is covered by our opinion in the case of Yale & Bowling, in Liquidation, vs. Bond & Williams, Opposition of Gilkerson-Sloss Commission Company, 45 An. 997; and it was preceded by another litigation in which the same parties were participants, with the terms reversed, viz.: Gilkerson-Sloss Commission Company vs. Bond & Williams; Yale & Bowling, in Liquidation, and A. Baldwin & Company, Limited, Intervenors, 44 An. 841.

And as those cases embrace and pass upon many of the facts which are drawn in question in the instant case, we may as well make a brief synopsis of them at this time.

The latter (44 An. 841) involves an attachment of the property of the defendants, Bond & Williams; and the intervenors alleging fraud and collusion between the plaintiff and defendants, sought to dissolve the writ and subject the property attached to their judgments.

On the facts found this court affirmed a judgment of the District' Oourt sustaining the attachment and rejecting intervenors’ demands.

Subsequently, upon what are alleged to have been newly discovered facts, the intervenors caused executions to issue simultaneously under their judgments against Bond & Williams, and thereunder to be seized a stock of merchandise, the present plaintiff filing a third opposition thereto, coupled with an injunction restraining the seizure and sale, and claiming ownership of the property seized. (That is the former suit, 45 An. 997.)

On the issues thus joined this court held that in thus seizing prop - erty to which third opponents had title, the creditor necessarily assumed that opponent’s title was a fraudulent simulation; and, further, that notwithstanding the fact that the continued apparent possession of the property by Bond & Williams after their sale to opponents raised a legal presumption of simulation, and put upon them the burden of showing its reality, they had discharged the burden of proof satisfactorily, and were entitled to the release of the property from seizure.

It is upon this status of the protracted litigation between these rival litigants, primarily enjoying no legal preference on the property of Bond & Williams, as debtors in common, that this action in damages is predicated.

We have appended a brief synoptical résumé of plaintiffs’ claims, as we find it recapitulated in their brief, as follows, viz.:

“ The claims in this suit against A. Baldwin & Co. are for the following amounts, viz.:

Trouble, harassment and annoyance to plaintiff ................................... $200 00

Loss of time of J. M. Gilkeson and >. E. Burwell............................................... 25<> 00

Traveling expenses and hotel bills of Gilkeson and Burwell...................... 75 00

Goods destroyed, stolen and surreptitiously carrie d away ......................... áOO 00

Goods deteriorated, damaged by rats, dust, mould, decay and becoming unsalable...................................v................................................... 300 00

Loss on net profits on sales that would have been made................................ 100 00

Great demoralization of labor and customers in both mercantile and planting business of plaintiff loss of good customers and loss of collections in consequence of suspension ef business..............................................$2,000 Q0

Punitory damages for making a wanton seizure............................................. 225 00

Attorney’s fees incurred in maintaining injunction......................................... 450 00

Total................................................................................................$4,000 00

A casual examination of the foregoing statement discloses that the ■damage claimed is the immediate result of the defendants’ seizure nnder execution, and in determining the defendants’ liability and in ascertaining the quantum of damages, two things must, in a great measure, control our judgment: First, the previous litigation between the respective parties, and second, the conduct and acts of the defendant with respect to the plaintiffs’ averment that the seizure was a “ wrongful and illegal act,” and “ without any cause whatever.”

Looking' into the two decisions above referred to, we find the following to be the salient and controlling facts, viz.:

In 44 An. 841, the plaintiffs attached the defendants, Bond & Williams, on the ground that they had acted fraudulently in the sense of the provisions of Oode of Practice 240, and the inter-venors resisted the same on the ground that it had been solicited by defendants and fraudulently agreed upon between plaintiffs and the defendants, in order to place the property beyond the reach of defendants’ creditors.

Our opinion holds that “ from a careful examination of the record we are of opinion that the intervenors have failed to prove that the plaintiffs and defendants were guilty of fraud and collusion in the issuing of the attachment by plaintiffs against the defendants,” reciting the controlling facts which were exhibited by the .record.

It then states that “the plaintiffs purchased the property under seizure, and agreed to cultivate the plantations and conduct the commercial business in their own names, engaging the' services of defendants at seventy-five dollars per month cash.”

Of this and other circumstances related the court say:

“ These are isolated facts, which taken by themselves lead to suspicion, but they are not sufficient proof and are explained away when taken, in connection with other facts. They are logical sequences of the financial condition of the defendants. The efforts of the creditor to save his debt out of the wreck, and of the debtor to provide for the future, were legitimate, provided no creditor was injured.”

The result of our conclusions was to affirm the judgment; and the result of the decree was to affirm the plaintiffs’ presumptive acquisition of the defendants’ property pendente lite.

In 45 An. 997, the defendants seized a stock of general merchandise situated in a storehouse in the town of Bonita, in Morehouse parish, which had been the place of defendants’ business at one time, claiming that it was their property. The plaintiffs opposed and enjoined the seizure and sale on the ground that they were the owners and in possession under the agreement above quoted, to the effect that after their purchase opponents “ agreed to cultivate the plantations and conduct the commercial business in their own names, engaging the services of the defendants at seventy-five dollars per month cash” — as stated in our previous opinion.

The opinion holds that the fact was that the sale was consummated and carried into effect as the parties had agreed. That opponents subsequently engaged Bond & Williams as their agents to take charge of the stock of merchandise and gave them a special procu-ration to that effect.

That under said mandate the goods went into the possession of the opponents after the sale, and continued in' their possession and under their management up to the date of the creditors’ seizure under fi. fa.

The answer of the creditors to the opposition was that the pretended agency of the defendants, Bond & Williams, was a fraudulent simulation intended to screen their property from the pursuit of creditors — the defendants being at the time notoriously insolvent, and the real and actual owners of the property.

Hence the sole question presented for our decision was simulation del non; and our opinion so holds. On an examination of the facts adduced pro and con, we reached the conclusion that the transaction was not a fraudulent simulation, but a real one that was intended to convey the property, and affirmed the judgment.

There are two features of that case which are noticeable. First, that Bond & Williams, debtors of the plaintiffs (defendants here), were in the actual possession of a stock of merchandise they had once owned, thus inviting seizure; second, that on the proof being adduced, we found as a fact that the transaction was a real one. The additional facts that’ were adduced on the trial of the instant case are not different.

The debtor’s possession after a sale is presumptive evidence of simulation. R. C. C. 2480.

Under the foregoing state of facts our conclusion is, that defendants’ seizure can not be considered altogether unjustifiable, or a wrongful and illegal act, notwithstanding the disclosures made in the previous suits. For it must be observed that the title of the Gilke - son-Sloss Commission Company to the stock of goods has never been judicially and contradictorily determined; and is still an open question.

The litigation between the parties has been protracted and expensive and attended with great hardship to all the parties engaged therein. In view of the fact that the ownership of the stock of merchandise has never been passed upon, and is still matter of doubt, though possibly beyond the reach of a judicial decree, we must decline to award damages on the score of the loss and deterioration in value of - goods, and demoralization of customers of the store and the like.

Nor do we think that the plaintiffs’ trouble, annoyance, loss of time , and the incidental expense of the litigation are proper subjects for an allowance of damages, under the circumstances of doubt and uncertainty in which plaintiffs’ title is involved.

The defendants’ seizure does not present the least indicia of wantonness, or want of probable cause, and no punitory damages can be allowed. But defendants’ seizure did put the plaintiff to the expense of employing counsel to resist the sale of the property, and defend his claims on appeal. Fees of counsel are put down in the plaintiffs’ estimate at four hundred and fifty dollars, and they are admitted to be worth three hundred and fifty dollars, with which the plaintiffs’ counsel appear to be satisfied.

To this amount we are of opinion the judgment appealed from should be reduced, and, as thus reduced, affirmed.

It is therefore ordered and decreed that the amount of the judgment appealed from be reduced to the sum of three hundred and fifty dollars, and that, as thus reduced, the same be affirmed; plaintiff and appellee being taxed with the costs of appeal.


text:
    No. 11,685.
    Gilkerson-Sloss Commission Company vs. A. Baldwin & Co., Limited.
    Same as in Gilkerson-Sloss Commission Company vs. Yale & Bowling, in Liquidation, ante, p. 690.
    APPEAL from the Fifth Judicial District Court for the Parish of Morehouse. Potts, J.

      Newton & Hall, G. H. Ellis and Bussey & Naff for Plaintiffs, Ap pellees.

      E. T. Lamlcin for Defendants, Appellants.
    Argued and submitted March 14, 1895.
    Decided April 8, 1895.
   The opinion of the court was delivered by

Watkins, J.

This case is similar in all respects to the case of Gilkerson-Sloss Commission Company vs. Yale & Bowling, in Liquidation, No. 11,684, just decided ante, p. —, with the exception that the amount due for attorney’s fees is admitted to be one hundred and fifty dollars, and no objection is urged by counsel for the plaintiff and appellee as to this amount.

The judgment appealed from should be amended and affirmed.

It is therefore ordered and decreed that the judgment appealed from be reduced to one hundred and fifty dollars; and as thus amended, it is further ordered that same be affirmed.


text:
    No. 11,568.
    State ex rel. Otto H. Schoenhausen vs. Fred. D. King, Judge of the Civil District Court, Division “ B.”
    An order of injunction haying been subsequently modified, contemptproceedings will not lie against the defendant in injunction on a charge of haying violated the order of injunction as it was, originally y granted; and prohibition will lie to restrain the further progress of such proceedings.

      ^^N Application for a Writ of Prohibition.

      E. Howard MeCaleb, Benjamin Bice Forman and Thomas M. Gill for Relator.

      Lazarus, Moore & Luce for Respondent.
    Submitted on briefs November 12, 1894.
    Opinion read April 8, 1895.
   The opinion of the court was delivered by

Watkins, J.

The complaint of the relator, substantially, is that his business has been summarily closed up and he has been incarcerated in jail under orders of the respondent in a suit wherein he has been allowed a suspensive appeal which has been perfected; and the averment of the relator is that the judge of that court ■“ has no power or authority under the laws of Louisiana pending a suspensive appeal to this honorable court, to thus summarily close up the business of your relator and put him in jail.”

Wherefore he prays for a writ of habeas corpus, that he may be ■discharged from custody, for certiorari, that the record be brought up and examined to the end that the validity of the proceedings be ascertained, and for prohibition, to restrain further proceedings by the respondent in the premises.

Primarily, in the month of December, 1893, an injunction was granted on the petition of James A. Koehl and others against the relator as defendant ordering and enjoining him from carrying on his business as the keeper of a concert saloon at the corner of Royal and Customhouse streets, in the city of New Orleans.

Subsequently, on the 20th of December, 1893, the aforesaid injunction was, at his request, so modified by the respondent as only to prohibit and enjoin him from carrying on his barroom and concert saloon and variety entertainments at the aforesaid place in any manner violative of the laws of this State or ordinances of the city of New Orleans, and forbidding him from permitting disorderly persons to congregate therein, or otherwise to create a nuisance in his establishment injurious to the plaintiffs in injunction.

Relator avers that, subsequently, an application was made to this court for writs of mandamus, certiorari and prohibition in respect to-said injunction, and the action of the respondent was affirmed to the-effect that mandatory writs of injunction will not issue ex parte before the trial of the cause, nor be used to oust a person in possession,. and that such mandatory injunction, compelling an abatement of a. nuisance, could not be made upon interlocutory motion, and that he-was thereafter authorized by law to continue his business under the-restrictions of the modified injunction, and that he has done so, not. in any manner violating the laws of the city or State in the conduct, of said business or the terms or conditions of said modified injunction.

Relator further avers that said injunction suit was tried in June,. 1894, and that the trial resulted in a verdict against him, sustaining; the modified injunction without damages, and thereupon the respondent rendered judgment condemning him to close his said establishment and to cease prosecuting his business altogether.

That from that judgment he applied for and obtained an order off suspensive appeal, and thereafter perfected his appeal by furnishing; the necessary appeal bond on the 12th of June, 1894, and his representation and averment are that the effect of said appeal was to-suspend the judgment, and that authority and jurisdiction to inquire-into the legality or illegality of carrying on his business are vested' exclusively in this court and not in the respondent.

That, nothwithstanding said final judgment and appeal on the 12th. of June, 1894, plaintiffs therein immediately thereafter, to-wit: on. the 18th of June, 1894, procured another rule upon him for contempt, on the averment that he had wantonly violated the writ of injunction thereon by opening and conducting his saloon and variety* hall on the night of the 12th of June, 1894, and prayed that he be-punished therefor. That he, at the time, excepted to this proceeding, because the petition failed to disclose the particular acts which, were alleged to have been in violation of the injunction, and failed to allege that relator has carried on his concert saloon in violation, of the laws of the State or city, or if so, what laws of the State or-city, and has failed to allege that he has permitted disorderly persons to congregate there and perform acts that constituted a nuisance-to the plaintiffs in injunction, and in the alternative that these pleas be overruled, he made answer, alleging that he had violated no law of the State or city in the conduct of his business, but had conducted the same in strict conformity with the terms of the modified injunction. But the respondent overruled relator’s exceptions and made the rule absolute and forced him to close his establishment, basing his judgment exclusively upon the testimony that was introduced over his objection and exception during the trial of the injunction suit, in reference to relator’s acts and doings from the 3d of January to the 6th of June, 1894, and erroneously holding that the mere opening of his establishment was a violation of the injunction, and constituted a contempt of court.

That, upon thus deciding, the respondent found the relator guilty of contempt and committed him to the parish prison for the term of ten days.

The respondent’s returns contain precisely a similar statement of facts to that set out by the relator; and amongst other things says that (1) “the defendant filed an exception to the jurisdiction of the court, and in the argument conceded that the court had jurisdiction to punish the defendant for a violation of the modified and preliminary injunction, but had no jurisdiction to punish him for a violation of the judgment rendered and signed by the court, on the verdict of the jury;” and (2) “ that the said rule was then tried and evidence heard; and that on the evidence then heard (as well as) the evidence which the court had previously heard taken before a jury, and of which the court had judicial cognizance, the court overruled the exception, maintained the rule, and adjudged the defendant guilty of contempt for violating the preliminary and modified injunction issued herein, and sentenced the defendant to the parish prison for ten days.”

But the foregoing is supplemented by the further statement of the respondent, viz.:

“Your respondent further says that the relator was found guilty of contempt in the breach and violation of the preliminary writ, and that was the only question decided by the court, and the only authority exercised by the court.

“The court, however, respectfully submits that the defendant could not obey the preliminary injunction, close his establishment in accordance with the order of the court, acquiesce therein in open court by his conduct, and then by an appeal from the judgment rendered on the verdict of the jury on the trial of the case on its merits, suspend the preliminary injunction, and divest the court of all power over him, and by an appeal reopen and continue to conduct his establishment.”

Therefore, we have these propositions for consideration, viz.:

The relator, as defendant, was preliminarily enjoined from carrying on his concert saloon altogether, but same was, on his application, so modified by the respondent as to permit his continuance of his business in such manner as not to violate any law of the State or ordinance of the city. That, on this court having been applied to for relief, the action of the respondent in modifying the preliminary writ of injunction was approved and sustained, on the ground that a mandatory writ of injunction will not issue ex parte before the trial of the cause, nor be used to oust a party in possession. That upon a final judgment having been rendered against the relator as defendant, perpetuating the modified injunction, he suspensively appealed therefrom, the effect of whieh appeal was to leave matters in statu quo.

That subsequently to said judgment and appeal, plaintiffs in injunction proceeded against the relator for contempt on the sole ground that he had opened and conducted his establishment on the night of the 12th of June, 1894, that is to say, on the night of the same day on which judgment had been rendered, and for that, sentenced him to imprisonment.

And, having considered the foregoing propositions, we are to determine whether respondent had authority and jurisdiction to entertain the contempt proceedings and punish the relator, as the defendant therein, for a violation of the preliminary writ of injunction, at all.

It is our opinion that he had not.

The preliminary order of injunction prevented the defendant from opening his establishment and prosecuting his business at all, but the order modifying the injunction permitted defendant to so conduct his business as not to violate any city or State law. Were-rfused to disturb this modifying order.

When judgment was rendered and suspensively appealed from the modified order remained unaffected and in statu quo. While there is no question of respondent’s authority and jurisdiction to entertain contempt proceedings predicated upon a violation of the modified order of injunction, notwithstanding the rendition of a judgment on the merits and a suspensive appeal therefrom, yet we are clear to the effect that his jurisdiction does not extend retroactively to the preliminary order of injunction before same was modified and instituted. It little matters what the judgment decreed, because its effect is restrained by the'appeal. If, indeed, antecedent facts can be examined, and an original order of injunction, since modified, be made the basis of contempt proceedings, where can the limits to its exercise be set? It is a quasi criminal proceeding and should be, therefore, strictly construed, and courts of justice very properly incline to that construction of the law which favors the liberty of the citizen.

After careful consideration of this case in all of its bearings, we have reached the conclusion that relator has presented a ease entitling him to relief.

It is therefore ordered, adjudged and decreed that the respondent direct and require the defendant to be released from imprisonment, constructive or actual; that he be prohibited from any further proceeding in said contempt proceedings, and that relator be released from the payment of all costs.