text:
    No. 10,970.
    Citizens Bank of Louisiana vs. Marie J. Webre et al. and Marie J. Webre vs. A. L. Bourgeois, Sheriff, et al.

      1. The defendants in execution, who have retained the free use of the property-seized, have not sustained any injury, and are not entitled to an injunction.
    2. The order of seizure and sale in so far as relates to the surplus of the purchase price reads:
    “And the balance, if any, of the price of adjudication cash, thus complying with the article which provides that the purchaser shall apply the surplus of the price, if there be any. to paying the special mortgage existing on the property to that of the seizing creditor.
    The advertisement, issued in compliance with the order, does not read so as to preclude the purchaser from thus retaining the price, and when construed with reference to the order of seizure and sale is plain.
    8. A purchaser of property, subject to a mortgage containing the pact denon alienando, stands with regard to the mortgage, in so far as relates to the acceptance of the mortgage, in the position of the mortgagor, and can make no objection to the seizure and sale on the ground of its non-acceptance, which the mortgagor could not make. The form of acceptance is not sacramental. Its conditions concerned theplaintiff, and were intended for its protection.
    A cancellation of mortgage entered many years since.
    An act consenting to a partition and setting forth plaintiff’s right on the property and the present are acts of acceptance. It is no longer possible to sustain the proposition that the mortgage is invalid, as not having been accepted.
    The defendants are owners of the property burdened with plaintiff’s mortgage. They were duly notified. The judgment appealed from is affirmed.
    APPEAL from the Twenty-second District Court for the Parish of St. James. Duffel, «7.

      St. M. Berault, E. N. Pugh and Henry G. Miller for Citizens Bank, Plaintiff and Appellee.
    Robi. J Dugué, contra:

    Injunction lies to arrest asale of real property under executory process ylien there is no seizure. C. I\ 298, Nos. 7,10.
    When there is a junior mortgage, the sheriff can not exact from the purchaser the surplus of the purchase price over the amount due the seizing creditor. The purchaser is entitled to retain it. C.I\ 706; 81 An. 86; 38 An. 259; 39 An. 735; 18 An. 65, 537.
    When an act of mortgage stipulates in substance that the mortgage is given to secure a subscription to bank stock, but that the mortgagor shall not be a stockholder, and shall not be entitled to the stock until the mortgage shall bo accepted by authentic acts, and until this authentic act shall be recorded and other conditions complied with, the mortgage does not attach to the property until the happening of the conditions.

      "Third persons acquiring property apparently subject to a mortgage, which they have not assumed, may resist its enforcement. They may use all defences that are not personal to the mortgagor, who can not deprive them of these by waiver or otherwise. 33 An. 708 ; 2i An. 28.
    .Injunction lies to arrest an order of seizure and sale issued on acts which do not import a confession of judgment.
    When the matter in dispute is the validity vel non of a mortgage of over $5000, this court has jurisdiction.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff obtained an order of seizure and sale of a •certain plantation in the parish of St. James, to pay an alleged stock debt of §708, claimed as due by the succession of Benjamin S. Webre, Marie Webre, widow of E. A. Webre, and Anna Webre, wife of E. •Guidry, and as secured by mortgage on the property.

The defendants enjoined the sale of the property.

They aver that one undivided half of the property belongs to the succession of B. S. Webre, and one quarter each to the other defendants, who have accepted the succession of B. S. Webre with the benefit of inventory; that the sheriff did not seize the property that there is a junior mortgage on the property; that the sheriff •can non exact from the purchaser the surplus of the purchase price over the amount due the seizing creditor; that it must remain in the hands of the purchaser.

That the mortgage sued upon was never accepted or recorded that it stipulates that the mortgage is executed to secure subscription to bank stock, and that the mortgagor shall not be a stockholder until the mortgage shall have been accepted by authentic Act, and until it shall have been recorded.

That as the mortgage has not been accepted, it did not attach to the property.

That they are third persons and can resist its enforcement.

A motion to dismiss the appeal was filed, on the ground that the amount involved is less than §2000.

The plaintiffs in injunction, allege the nullity of the mortgage ■claimed by the bank, amounting to- more than §5000, and ask for its nullity. The matter in dispute is the nullity or validity of this mortgage for an amount larger than the minimum limit of the court’s jurisdiction.

The suit was brought to enforce calls for payment on stock. The plaintiffs in injunction ask that the mortgage by which they are secured be declared null.

With reference to the allegation that the properly was not seized. The notices of seizure were given in accordance with the order of seizure and sale.

The defendants in the seizure, who are in the corporeal possession of the property, have no ground of complaint, if the sheriff did not-divest them of that possession while the property was under seizure.

If that officer chose to allow them that possession, they can not, by proving that fact, defeat the seizure, which he returned as having been made.

For the purpose of the seizure, he holds for plaintiff’s benefit.

The party allowed to remain in the enjoyment of actual possession-can not maintain that it is an act which authorizes an injunction,, under Art. 998 O. P.

The testimony offered by the defendant to prove incorrectness of the return and insufficiency of possession was properly excluded by the court a qua. Lambeth vs. Sentell et al., 38 An. 695; Gusman et al. vs. DePoret et al., 33 An. 337; Devalle vs. Hayes, Sheriff, 23 An. 550; Calderwood vs. Prevost, 9 R. 182.

Relative to the surplus of the purchase price over the amount due the seizing creditor. The terms stated in the petition and the order are that the purchaser shall pay the amount claimed as due cash and assume the residue of the stock mortgage debt, not yet due, and the balance, if any, of the price of adjudication, cash.

There is a mortgage inferior in rank to that of the seizing creditor.

It is argued, substantially, that the sheriff is without authority to require from the purchaser a larger amount than that of the writ, in his hands, and that this officer is the legal agent of the seizing creditor, and is not concerned with the rights of the mortgage creditors, subsequent in rank, to the extent of requiring cash for their-payment.

The article referred to, 707 O. P., is clear: “ The purchaser shall apply the surplus of the price, if there be any, to paying the special mortgage existing on the property subsequent to that of the seizing creditor.”

The order of seizure and sale complies with the provision of the law.

The adjudication shall be for cash.

This does not preclude the purchaser from retaining the surplus of the purchase price, if any there be, to pay the mortgage second in rank.

The advertisement is not as plain in this respect as the order of seizure and sale; hastily reading, it may be concluded that the cash refers to a price to be paid, instead of an adjudication for cash of a surplus which may be retained by the purchaser to pay the second mortgage. When considered with reference to the order, the terms are plain.

The acceptance of the mortgage and its record. The act of mortgage contains the declaration that in order to guarantee her subscription the mortgagor mortgages her property. It containsthe stipulation that the mortgagor immediately after the acceptance of the mortgage by authentic act by the president of the bank, and the procuration of a certificate of inscriptions from the parish judge, and of non-alienation of the property, and establishing in addition that no new mortgage or privilege had been recorded, the mortgagor was to be a stockholder for 828 shares in the capital stock.

The mortgage, in compliance with the charter, was to be executed in the parish in which the property was situated.

The bank reserved the right to accept the mortgage.

The form of acceptance declared in the act as a protection to the mortgagee, upon whom devolved the duty of determining as to the value of the title and value of the property offered as security, was not exclusive of every other mode of acceptance. It was not essential to accept precisely as prescribed in the act.

Other modes of accepting may prove equally as effective and binding.

On the 3d day of September, 1881, the number of shares secured by mortgage having been reduced from 828 to 237, the bank, by notarial act, acknowledged .the reduction and consented to a partition, it the bank alleges.

The declarations contained in this act have the effect of an acceptance. The allegation of plaintiff is that the shares had been issued and were in the possession and control of the bank.

On the 12th of August, 1842, the parish judge made mention of partial release on the margin of the record in his office of the act of mortgage, and noted thereon a partial cancellation and statement of the balance dne.

The partial release mentioned that it was founded on an authentic act, before Boudousquie, notary.

Art. 3385 of the Civil Code provides for noting releases and cancellations on the margin of the record. The reduction and cancellation are confirmed by the act of September, 1881, before mentioned, also by this suit.

Their correctness was unquestioned during many years.

The mortgagor would have no right to object to its non-acceptance. The defendants are not in a better position, for the act contains the pact de non alienando. Barrow vs. The Bank of Louisiana, 2 An. 453.

It is urged by the defendants that the marginal note was not offered in evidence.

It is copied in the transcript as marginal note of the record, and the clerk .certifies to the correctness of the entry. We therefore consider it evidence.

These declarations in the act of 1881, and the cancellation, are an acceptance of the mortgage.

The bank alleges that the defendants became the owners of a portion of the plantation mortgaged and of fifty shares of the stock.

In the ex parte act purporting to accept a partition the bank declares that by an act passed under private signature, and dated the 17th of January, 1871, a partition in kind had been effected among the owners, and that in this partition the defendants became the owners of the said shares and responsible for the mortgage.

The act of partition of January 17, 1871, was not introduced in evidence. Being the independent declaration of the creditor, it can not bind the defendnnts to the extent of authorizing executory pro - ceedings.

The order of seizure and sale is not grounded upon the act of 1881.

This last act limits plaintiff’s recourse to those of the heirs who are made defendants and its mortgage to that portion of the property in the possession of the defendants, and has no other effect.

Plaintiff declares upon the act of April, 1835, and avers that the portion of the property owned by the defendants is mortgaged to secure the amount claimed.

Copy of this act annexed to the petition and certificate showing that it has been recorded are in evidence.

The right of the bank under that act is complete.

One of the defendants was an heir of the mortgagorif there had been non-inscription as to him the administrator of his succession could not raise the question.

The act was inscribed, and binds the property in the possession of the defendants.

The pact de non alienando is secured to plaintiff by its charter.

The defendants were the parties to be notified, and were properly notified. Gillaspie vs. Citizens Bank of Louisiana, 30 An. 1321.

It is admitted that the defendants are the owners of the property.

It is subject to plaintiff’s mortgage.

Judgment affirmed at appellant’s cost.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 10,913.
    Nicholas O’Connor vs. Illinois Central Railroad Company.
    1. The possessor of lands or tenements is not at liberty to plant in them dangerous instruments which may seriously injure trespassers; but he is under no duty to keep his premises in a safe condition for others than those whom he invites; and, therefore, he is not liable to trespassers for injuries they may receive from defects, not amounting to traps, in such premises.
    2. If a person allows dangerous implements to be exposed on a premises occupied by him, he will be responsible for injury caused thereby to any person entering the premises by his invitation or procurement, express or implied, who is not notified thereof, if he be in the use of due care.
    3. The owner of land or other property may properly endose dangerous machinery upon his own premises, such machinery being an essential industrial factor; and a trespasser who meddles with such machinery can not recover damages for the injuries his meddlesomeness has brought upon himself.
    4. Railroad companies are not placed under the same degree of obligation as to care and diligence to guard against injuries to strangers as they are to those with whom they have contract relations. To the former their obligation is, upon considerations of humanity and justice, to conform their conduct as to the rights of others, and, in the prosecution of their lawful business, to use every reasonable care and precaution to avoid their injury.
    o. In so far as children “ of tender years” are concerned, no fault or blame can attach to them for entering upon the premises of another uninvited, for in all cases they may be assumed to have exercised due care; and if, upon so entering, they be injured by dangerous implements of the occupant, the question determinative of the latter’s negligence is, whether they had an invitation either express or implied, to enter.

      APPEAL fr.om the Civil District Court for the Parish of Orleans. Ellis, J.

      T. J. Gilloly and Branch K. Miller for Plaintiff and Appellee:
    Where a defendant negligently exposes, on bis private property, to which he has allowed for years free access by children to play with a dangerous machine unguarded and unsecured, likely to attract children, excite their curiosity, and lead to their injury, while they are pursuing their childish instincts, he is liable to a child of tender years injured while playing with it. 13 An. 61; Beach on Cont. Neg. 69, 70; 17 Wall. 157; 21 Minn. 209.

      Girault Farrar for Defendant and Appellant:
    1. The “ turntable ” cases have no application here, where the locus in quo was defendant’s private premises, enclosed with a high board fence, and where defendant took all reasonable precautions to keep children out. Hargreaves vs. Deacon, 25 Mich. 1; Stout vs. Railway Co., 17 Wall.; Keefe vs. Railway Co., 21 Minn.; Westerfield vs. X.evis, 13 An.
    2. The proximate cause of the child’s injury was the father’s negligence, which he has not attempted to deny by competent evidence. Montfort vs. Schmidt, 36 An.; Mullins vs. Blaise, 37 An.
    3. The wife's testimony in a case where the husband is plaintiff, having an identity of interest with him, is inadmissible upon grounds of public policy. C. 0., Art. 2281; C. I’., Art. 182; Tulley vs. Alexander, Administratrix, 11 An.628; Cooley vs. Cooley, 38 An. 197; Dillon vs. Dillon, 32 An. 613.
    1. Defendant was not guilty of negligence at all under the facts. The accident was unavoidable by any reasonable precaution on defendant’s part. Ilearne vs. K. R , 31 An. 160; Montfort vs. Schmidt, 36 An.
    5. The judgment of the lower court awarded interest on unliquidated damages Ilolzhab vs. R. R. Co., 38 An. 185.
   The opinion of the court was delivered by

Watkins, J.

The father institutes this action for the recovery of $25,000 damages, as compensation for injuries inflicted upon his minor child, which resulted in the amputation of his left leg, causing great pain and suffering.

The case was tried by the judge, who found $7000 for the plaintiff, and defendant has appealed.

Plaintiff’s counsel claims that the ease made out by the evidence is that the accident happened on a square of ground belonging to the defendant, bounded by Magnolia, Olio, Locust and Calliope streets, in the city of New Orleans, and which the company used for the storage of old freight cars of sundry kinds, trucks and wheels not in service.

That amongst other things asualiy stored in this yard were what are called coal-dumps or cars of a peculiar construction, being composed of only two wheels attached together by an axle, and on which is placed a wooden frame-work which extends fore and aft, and may be seesawed on either side of the axle. That this square is surrounded by a plank or board fence, “ which, for years, has, at all times, been full of holes, caused by missing planks,” through which the children of the neighborhood would pass in and out in going to and returning from play, and where they frequently resorted, being attracted there by the coal-dumps, on which they would amuse themselves; some riding, while others pushed them along the rails. That, in accordance with the established usage of the neighborhood, plaintiff’s child went into the yard, in company with a party of children to play, and, while riding on one of these coal-dumps, which was pushed along thetrackby others, he fell off and was run over by the car, receiving injuries necessitating the amputation of his leg.

It will be observed from the foregoing that plaintiff’s reliance is, solely and exclusively, for proof of defendant’s negligence, upon the customary and long protracted bad condition of its fence, enclosing the premises above described, which operated an invitation and inducement to children of the neighborhood to resort to the dangerous proximity of these coal dumps, to play.

This theory is combatted by defendant’s counsel on the ground that the evidence shows that the employés and agents of the defendant used every reasonable precaution to keep children out of its yards; and that the proximate cause of the accident was the act of the child’s companions and older boys, who accompanied him into the yard — one of whom was an elder brother.

That the whole front of the company’s yard, fronting on Locust and Clio streets, is protected by a high, close board fence about seven (7) feet in height, except where it is intersected with public streets, through which there are openings, so as to allow cars to be switched across said streets into other and adjoining squares belonging to the company.

That on the evening of the 23d of July, 1890, the plaintiff’s minor child went into the yard, with a party of little comrades, and commenced playing with the wheels on the defendant’s tracks, when the accident happened, and injury resulted as stated above.

Taking the statements together, the solitary question of fact mooted, seems to be whether the' customary bad condition of the defendant’s fence was such as to offer inducement to children of the neighborhood to enter their yard for purposes of amusement and play; and this being determined favorably to plaintiff, the question of law thereon raised is the negligence vel non of defendant under the circumstances related.

In this, as in kindred cases, there are, apparently, many incompatible statements of fact, which we shall not attempt to traverse in detail and reconcile, but rest contented with the announcement of •our conclusions on this particular question, after recapitulating the evidence.

The plaintiff introduced several witnesses residing in the immediate vicinity of the place where the accident happened, and who were supposedly familiar with the defendant’s premises, from frequent and personal observation; and from their testimony we extract the following synopsis, viz.:

One of them testifies that near the corner of Locust and Olio streets there were two or three of the planks broken off of the company’s fence at one place through which he saw persons frequently passing. That it was afterward repaired by the company’s employés, and then broken again. That that was the only opening’he saw at that time — there being no openings in the fence on the Olio or the Calliope street side.

This witness was the gentleman who heard the child’s cry of alarm, and ran to his relief, and removed the truck-wheel from his broken limb.

Another one — a little fellow of thirteen years of age, who was one of the companions of the injured boy — confirms the statement of the witness just referred to, and says that it was through this opening they entered the defendant’s yard on the evening of the accident.

Another speaks of two or three openings in this fence, several months previous to the occurrence — two or three big openings, and about four little ones; the larger ones being about two (2) feet wide. But there was an opening on the Magnolia street side to allow cars to be switched across the street into the adjoining yards.

Another testifies, in a general way, that the fence was always (at) one time or another broke; ’ ’ that he frequently ‘ ‘ passed through the yard for a short cut;” that he passed through the hole in the fence at the corner of Clio and Locust streets. He only refers to •one other hole.

Another describes the same two holes.

Another, one place only, where there was a single plank off. Another speaks of two places; and another of “three or four places where there were planks knocked off.”

This is a fair summary of plaintiff’s testimony on the subject.

With regard to the length of time these holes remained continuously open, the witnesses differ widely — some stating for a few weeks, and others for one or two years.

But, on the contrary, defendant’s witnesses, while admitting the existence of holes in the fence, deny that same existed for any considerable length of time, and affirm that the fence was frequently repaired, and as frequently broken down again; and, while admitting that children and boys often congregated in defendant’s yard— climbing over the fence, or passing through the holes — they were just as repeatedly driven out, and warned against trespassing again.

One of the company’s employés, a car inspector, states that he has seen boys knock the fence down. He has seen them climb over the fence many a time; and that to keep them out has been a matter of great trouble to him. Has frequently seen the switchman arid others drive them out of the yard. He says that he could see no possible way of keeping them out, except by the company detailing a man for that special purpose.

Another, the yard foreman, states that he has frequently driven the children out of the yard, and just as soon as he was out of sight they would come in again. He says it would “ require an army of policemen steadily (employed) to keep them out.” He states further “ that when the fence was fixed, they would get in by way of Magnolia street, where there is a gate, through which the cars pass to and fro, and in and out of the yard. We had locks, and every time they were fixed on the gates, they would break them.”

Another, the night watchman, states that he has frequently driven children out of the yard, and has himself nailed up the hole in the fence at the corner of Olio and Locust streets. “They kept me busy getting nails all the time, to keep the planks up. Whenever I saw one down I nailed it up again.” Has often seen boys climb that fence, and has thrown them off of it.

Another witness, who lives opposite the corner of Olio and Locust streets, states that he has seen the hole in the fence at that place repaired frequently. Saw it open and then closed; and then saw the boys knock it down again.

Another witness fully corroborates his statement.

The section foreman, whose duty it is to keep the fence in repair, states that he has been engaged in that capacity for twenty (20) years, and during that period of time has resided within a block of defendant’s yard, and that he has repeatedly closed the hole in the company’s fence at the corner or Clio and Locusts streets; and that he closed it once in May, and again in June, prior to the happening of the accident, on the 23d of July, 1890. That he had occasion to mend it ten (10) or fifteen (15) times a year, on account of boys knocking it down. Says he would repair it on one day and go back on the following day and find it down again.

Another witness, a master mechanic, says that on the identical evening on which the accident occurred, he chased a party of children out of this yard.

On this state of facts was the defendant guilty of negligence, or did the company’s agents and employés exercise due care and caution ?

It must be borne in mind that the plaintiff is an utter stranger to the railroad company, claiming damages ex delicto, with whom neither the child or its parent had any contractual, or even quasi contractual relations at time of the accident.

And just here we may, with propriety, advert to the views entertained by the judge a quo in respect to the testimony, and which grounded his judgment in plaintiff’s favor.

In recapitulating the evidence he says, amongst other things:

“The grounds are enclosed by board fences, but in those fences are openings caused by planks being removed, which made entrance into the grounds from the public streets a matter of no difficulty. These openings at different places remained unclosed for months preceding the injuries of plaintiff’s child.”

It is proper, just here, to observe that, on this question, there is a diversity of opinion among witnesses, but the whole of it has given us an impression just opposite that which our learned brother of the lower court has received.

It is true that one of plaintiff’s witnesses said in a general way that the fence was “ always, [at] one time or another, broke,” and that he frequently and customarily “ passed through the yard for a short cut;” yet he accompanies this statement with the admission that he passed through the hole at the corner of Locust and Clio streets, and refers to but one other hole in the fence around this particular yard. The proof affirmatively shows that plaintiff’s child passed through this hole, on the afternoon of the accident. No witness testifies that any child, or adult, or animal, passed through any other hole, into the defendant’s yard.

Defendant’s night watchman testifies that he nailed this hole up frequently.

A gentleman who lives opposite that corner, as a witness, states that he has frequently seen this particular hole repaired; saw it open, and then saw it closed again. Saw the boys knock it down. This witness is substantially corroborated by two other witnesses who are strangers to the company.

In addition, the section foreman, who resides a block and a half away, and whose special duty it is to keep this fence in repair, amongst other things, as a witness, states that he has repeatedly closed this hole. That he closed it once in May and again in June of 1890, just prior to the accident on the 23d of July. That he has had occasion to mend it ten or fifteen times a year, on account of the boys knocking it down. That he would repair it on one day, and go back on the following day and find it down again.

The judge further observes “that whilst the company knew all these facts [and] took measures at times to mend-the broken places, and to drive children from the enclosure, is [a fact] well established, [yet] it did not take the proper measures, nor make the needed repairs” — as it did subsequently.

But in this regard we are of opinion that it is matter of importance to be considered that two or three witnesses testified that they saw children climb over the fence to get into the yard. One witness states that he pushed little boys off the fence. One of plaintiff’s witnesses states that there was an opening on the Magnolia street side of the square to allow the cars to be switched through on the company’s track; and one of the defendant’s witnesses states that “when the fence was fixed they [the boys] would get in by way of Magnolia street, where there is a gate through which the cars pass, etc. * * * We had locks, and every time they were fixed on the gates they would break them.”

It seems to us that it would be rather a difficult question to determine what, under such circumstances, would be the “proper measures” for the railroad company to take; but what is of greater importance for us to determine is, whether the means resorted to were sufficient to relieve the company from imputation of negligence.

The lower judge evidently did not think the proof of defendant’s negligence, in reference to the openings in the fence, sufficient, because he adds another reason altogether for his conclusions, thus:

‘ ‘ It was negligence to leave the trucks and dumpers and connected wheels on the tracks, for they were not only exceedingly dangerous, but of a nature to tempt the curiosity and invite the playfulness of children. * * * * The defendant’s negligence left the dangerous dumpers, wheels and trucks in close proximity to the streets, in a thickly populated neighborhood, where they could be seen by passers by, and where they could be easily approached by children. They were not securely enclosed, nor locked, but were left exposed where they could be set in motion by a child.”

The judge evidently had in mind the ease of Westerfield vs. Levis Bros., 43 An. 64, and Railroad Co. vs. Stout, 17 Wall. 657, to whichhe makes reference. But the facts of this case — so far as we have proceeded with the discussion — render them impertinent to the question of the defendant’s negligence; and so also is the averment of fact, that it was negligence of defendant to leave the coal dumps, etc., on its tracks, or in close proximity to the streets; or that they were left exposed and unlocked — if the tracks were inside of an inclosure of sufficient height and strength to keep innocent and unsuspecting children out of their reach. And we think the proof abundantly shows that defendant’s fence was adequate for that purpose, so long as it remained unbroken by mischievous persons; and we also think it fully established that the company exercised at least ordinary care to keep it in a safe condition, by making necessary repairs.

In so far as the alleged negligence of the defendant, in reference to the exposure of the trucks, dumps and wheels are concerned, we do not understand that plaintiff's petition or briefs rest on such an hypothesis as that, nor could they do so.

The law of this case, as developed by the facts recited, may be briefly stated:

It is founded on the law of damages ex delicto, as announced in the code, which declares that “ every act whatever of man that causes damages to another obliges him, by whose fault it happened, to repair it.” R. C. O. 2315.

“Every person is responsible for the damage he occasions, not merely by his act, but by Ms negligence * * or his want of skill.” R. C. C. 2316.

It is founded on fault or neglect.

A distinguished author, in a treatise on negligence, says: “It is enough to say now that a possessor of lands or tenements is not at liberty * * * to plant in them dangerous instruments which may seriously injure trespassers, but he is under no duty to keep his premises in a safe condition for others than those whom he invites, and therefore he is not liable to trespassers for injuries they may receive from defects, not amounting to traps, in such premises.” Wharton on Negligence, Secs. 344, 821.

Again he says:

“If a person allows a dangerous place to exist in premises occupied by him, he will be responsible for injury caused thereby to any other person entering upon the premises by his invitation or procurement, express or implied, and not notified of the danger, if the person, injured is in the use of due care." [Our Italics.] Id., Sec. 826, citing Coombs vs. New Bedford Co., 102 Mass. 572; Id., Sec. 350.

To such a case, the rule sic utere tuo, etc., applies. With reference to children of tender years, it may be conceded that they proceeded with due care, but can it be said that the condition of defendant’s fence operated as an “ invitation or procurement, express or implied? ”

Upon this precept another important rule has been formulated by that author, viz.:

“The owner of land or other prpperty may properly enclose dangerous machinery o 1 [his] own premises, such machinery being ^.n essential industrial factor. * * * Hence comes the well established rule that a trespasser who meddles with an instrument in itself dangerous can not recover damages for the injuries his meddlesomeness has brought on himself." Id., Sec. 347.

But the author says further:

“ So with regard to leaving a dangerous implement on a thoroughfare. It is negligence to leave such an instrument on a place of public access, where persons are expected to be constantly passing and re-passing, and where persons are not required to be on their guard, or where children are accustomed to play; but it is not negligence to leave such an instrument in a private inclosure which, from its very privacy, excludes the public and puts on their guard all who enter.” [Our Italics.] Id., Sec. 112, citing Railroad Co. vs. Stout, 17 Wall. 657.

And in referring to that case the author speaks of the principle therein announced thus: It was held that the company was liable for damages sustained by a boy when playing with a turn-table left by the company unguarded and unlocked on its own grounds, it being shown that the boys of the neighborhood were in the habit of resorting to the place for play, and that this was known to the company.” Id., Sec. 860.

A parallel case is cited from Lane vs. Atlantic Works, 111 Mass. 136.

These various citations from this justly celebrated author, which are predicated on the established jurisprudence of the country, are quite sufficient to show that the instant case does not disclose the defendant’s negligence as matter of law. For, if little boys did resort to the defendant’s premises for purposes of amusement and play, habitually, it was certainly against the defendant’s wishes and over its agents’ and employés’ protests, made repeatedly, although ineffectually.

Notwithstanding the fence of the company, enclosing the dangerous coal-dumps and wheels, was frequently open, in places — possibly for a greater lengh of time than it should have been allowed to remain open — yet these openings were not occasioned by the company’s employés or persons holding even quasi contractual relations with it; but they were occasioned by acts of trespassers upon their-private grounds.

And the proof is clear that the agents and employés exercised ordinary care in its safe-keeping. They used timely and repeated efforts to keep the apertures closed. The children were repeatedly warned against the danger and driven away. And on more than one occasion they were pulled off of the fence.

Mr. Hutchinson announces the general rule to be that railroad companies are not placed under the “ same degree of obligation as to care and diligence, to guard against injuries to strangers,” as they are to those with whom they have contractual relations. For, with regard to the former, their 1 ‘ duty is governed by the general principle of law, that every one is obliged, upon consideration of humanity and justice, to conform his conduct to the rights of others, and, in the prosecution of his lawful business, to use every reasonable precaution to avoid their injury.” Hutchinson on Carriers, p. 447.

And this rule has been sanctioned in many cases. Snyder vs. Railroad Co., 42 An. 302; Lott vs. Railroad Co., 37 An. 337; Hogg vs. Railroad Co., 85 Penn. St. 293; Cawley vs. Railroad Co., 98 Penn. St. 500; Wharton on Negligence, Secs. 300, 301; Thompson on Carriers pp. 344, 345; Hearn vs. Railroad Co., 34 An. 160; Montfort vs. Schmidt, 36 An. 750; Reary vs. Railroad Co., 40 An. 32. To this rule the case of Westerfield vs. Levis Bros. 43 An. 67, does not apply; for in that ease the negligence of the defendants was fully established by their having left a heavy iron roller, with two mules attached thereto, unattended by a driver, on an open public street — the mules not' fastened, and the wheels of the roller unlocked. The aggravated question in that case was, whether the child, who was mortally injured, was of sufficient age and discretion to have been guilty of contributory fault.

The general rule as announced by Mr. Wharton, that “ there is no duty imposed, upon the owner or occupant of premises to keep them in a suitable condition for those who come there for their own convenience, merely, without any invitation, either express or which may fairly be implied” from the surrounding circumstances, has been sanctioned in many cases. Sterry vs. Nickerson, 120 Mass. 306; Pierce vs. Whitcomb, 48 Vt. 127; McAlpin vs. Powell, 70 N. Y. 126; Gramlick vs. Wurst, 86 Penn. St. 74; Railroad Co. vs. Hernch, 23 Kan. 347; Morgan vs. City of Halowell, 57 Me. 375; Railroad Co. vs. Carreher, 47 Ill. 333; Murray vs. McLean, 57 Ill. 378.

In conclusion we can not do better than quote an illustration of the rule stated, from the case’of Hargreaves vs. Deacon, 25 Michigan, 1, in which the plaintiff sued as administrator of his minor child of tender years, who was killed by falling into a cistern of the defendant, which had been, left uncovered; and in stating the duty of protection and care on the part of the proprietor the court say: “If on private property, not open of right to the public, it applies less generally, and only to those who have a legal right to be there," and to claim the care of the occupant for their security, while on the premises, against negligence, or to those who are directly injured by some positive act involving more than passing negligence.

‘ ‘ Cases are quite numerous in which the same questions have arisen which arise in this case, and we have found none which hold that an accident from negligence on private premises can be made the ground of damages, unless the party injured has been induced to oome by personal invitation, or by employment which brings him there, or by resorting there as to a place of business, or of general resort held out as open to customers or others whose lawful occasions may lead them there.

We have found no support for any rule which would protect those who go when they are not invited, but merely with express or tacit permission, from curiosity or motives of private convenience in no way connected with business or other personal|relations with the occupant.”

On a full and exhaustive examination of the facts furnished in the record, and all the authorities appertaining thereto, we are fully convinced that the negligence of the defendant is not made out, and the plaintiff’s case must fail, and the judgment be reversed.

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

Rehearing refused.


author: Breaux, J.

text:
    No. 10,990.
    Mrs. Anna Chapoton vs. Her Creditors.
    The syndic can maintain a revocatory action to have a mortgage canceled, if given in fraud of creditors.
    He may maintain the action against a creditor, as he can against a non-creditor of the insolvent.
    The origin, or the date of the claims of certain creditors, will not he acause of dismissal of the action, should it appear that some of the creditors have a right under the Actio Paulicvna.

    The laws applying to the settlement of insolvent successions in, puri materia may he construed with those applying to proceedings affecting the insolvents.
    Although a judgment is not conclusive on the creditors; similar in that respect to judgment against administrators, representing creditors, the syndic can maintain the revocatory action to have the mortgage of a creditor annulled, if it was given in fraud of the creditors.
    APPEAL from the Twenty-third District Court, Parish of Iberville. Talbot, J.

      Alex. Hébert for Syndic, Appellant.

      E. T. Elorance for J. G. Spor, Defendant and Appellee.
   The opinion of the court was delivered by

Breaux, J.

The syndic of plaintiff’s creditors brought suit to revoke and annul a mortgage she executed in favor of one of her creditors, on the ground that it was given a short time prior to the surrender of her property to her creditors; that she was insolvent at the time, to the knowledge of the mortgagee; that it was granted to the creditor with the intention of giving him an illegal and fraudulent preference, to the detriment and loss of other creditors.

The defendants (the insolvent and the mortgagee) tendered separate exceptions to plaintiff’s action, in which they aver', substantially, that it is not competent for the syndic to maintain such a suit, because, being the representative of all the creditors, he could not champion the cause of some against others, or one class against another class; that creditors must litigate their claims inter sese and en concurso, and not by separate suits instituted by a syndic.

The District Judge maintained these exceptions, and from the judgment the syndic has appealed.

The action is revocatory.

Counsel representing one of the defendants seeks to establish a difference between a class of actions brought under the term Actio Pauliana, for the purpose of bringing back into the debtor’s estate property that has passed out of it, and another class brought to have a right annulled, resting on the property that is still in the debtor’s estate; that is, suits in one case against non-creditors and in the other against a co-creditor. It is conceded that in proceedings against those who are not creditors, to bring into the estate property that has passed out of it, the syndic, as the representative of all the creditors, is authorized to stand in judgment.

But it is contended that in cases falling under the latter category, where the litigation is between creditors and creditors, the syndic can not “take sides; ” that he must leave to his constituents the burden of settling their rights among themselves.

It is urged that if this distinction be kept in mind apparent inconsistencies in the decisions will disappear, because suits by syndics have been maintained where the property which was the subject thereof had passed out of the possession of the insolvent, and had to be brought back, and that suits had not been maintained whenever the issue has been the right of priority of payment out of the property surrendered to the syndic.

The law does not seem to contemplate the difference urged in giving to the representative of all the creditors, where there is a cession, an action to annul any contract, in fraud of their rights, and in authorizing him to sue and be sued in everything respecting the rights and actions which may belong to the insolvent debtor and which concerns the mass of creditors. C. C. 1970. R. S. 1811.

Judicial interpretation recognizes the right, in matter of claims, such as the one under consideration, of creditors in a concursas, of opposing the claim of an alleged preferred creditor.

This right has not been held as exclusive and as precluding the direct action between a syndic and a creditor who claims an adverse right.

In Girard vs. Mezier, 13 An. 147, it was held that the creditor can institute an action to cancel a contract made in fraud of creditors, after the cession of property.

The authority of the syndic to bring a similar action was not questioned.

In 14 An. 221, and other cases, it was decided that the syndic was incapable of standing in judgment in a suit to have a privilege recognized; that he represents the mass and not individual creditors.

This must be held correct when creditors bring suit to establish their claims as against their co-creditors, for the syndic can not stand in judgment for the purpose. The creditors have an ihterest in a fund to be distributed by the court and must contest in the distribution contradictorily with each other.

The syndic is without authority to oppose a creditor in this respect or to recognize his claim in any manner, so as to bind the other creditors.

But when a creditor has a right on property and holds it against the concursus and it becomes necessary to invoke the Actio Pauliana to have the propert3r brought to the estate free from incumbrance, the syndic has authority to stand in judgment.

The question arose in the case of Byrne & Co. vs. Their Creditors, 33 An. 201, in which it was urged that the syndic is without authority to question the validity of any claims on the part of creditors.

The court held that his duty requires that he should resist all claims which he suspects as illegal or fraudulent, and maintained his answer setting up the nullity of the judgment of one of the creditors.

“ The right to plead in behalf of the estate and of the creditors being once recognized in the syndic, can not be affected or modified by the nature, origin or the date of the claims of any creditor of the estate.”

We have referred to the law authorizing the syndic to stand in judgment in all matters of interest to the creditors.

The grounds urged for restricting the right to non-creditors, in a revocatory action, are that judgment may be rendered annulling a mortgage given before the claims of some creditors were created, and to this judgment such creditors would not be entitled.

It sometimes happens in a concurso that creditors have rights in which their co-creditors do not share.

A fund may be distributed among particular creditors who have privileges.

The revocatory action may be instituted by a syndic or administrator without regard to the date or origin of the claims of the creditors.” Sullice vs. Gradenigo, 15 An. 582.

In distributing the funds the syndic represents all the creditors.

In suing to establish a right he may be placed in a position in opposition to the illegal and fraudulent demands of one or more of the creditors.

The next objection:

A suit of the latter character would not, if decided against the syndic, constitute res adjudicate, against the creditors.

This is correct.

The decree between the creditor and syndic would bind them, but would not bind the creditors in all respects. In this we do not find cause to dismiss the action.

A decree against an administrator representing creditors does not unqualifiedly bind the latter. That would not be considered good ground to dismiss an action against an administrator.

The laws applying to the settlement of insolvent successions in pari materia may be taken and construed together with those applying to proceedings in insolvency, as one system and as explanatory of each other.

Although a judgment may not be conclusive on the creditors similar in that respect to judgment against administrators representing creditors, the syndic can maintain the revocatory action to have the mortgage of a creditor annulled if it was given in fraud of creditors. The State ex rel. Cohen vs. Judge, 41 An. 41.

It is therefore ordered, adjudged and decreed that the judgment appealed from be avoided and reversed; that the case be remanded to the lower court; that it be reinstated on its docket for further proceedings according to law, appellee to pay costs of appeal.


author: Fenner, J.

text:
    No. 10,984.
    The State ex rel. New Orleans & Lake Railroad Company vs. City of New Orleans et al.
    A relator who applies for a mandamus to compel the granting of a suspensive appeal may discontinue his application at any time before judgment thereon.

      Buck, Dinkelspiel & Hart for the Relator.

      Carleton Hunt, City Attorney, for the Respondents.
   On Motion to Discontinue.

The opinion of the court was delivered by

Fenner, J.

Since the submission of this case, but before the decision, the relator has moved to discontinue its application for the extraordinary writs herein invoked.

Counsel for the city opposes the motion and insists that the case should be decided. Art. 491, C. P., declares that “The plaintiff may, in every stage of the suit previous to judgment being rendered, discontinue the suit on paying the costs.”

This alone affords ample warrant for relator’s action. But, aside from this, it would be worse than idle for us to determine whether or not the respondent judge should be compelled by mandamus to grant a suspensive appeal from an order rendered by him when the relator, the only party who wants the appeal, and who invokes our aid to enforce it, in effect withdraws his application for the appeal, and abandons his proceedings in this court enforce it.

The motion to discontinue is granted.


text:
    No. 10,996.
    Mrs. Emma Patureau vs. Frederick Wilbert, McCardle et als. and A. Wilbert’s Sons Lumber and Shingle Co. vs. Mrs. Emma Patureau, Consolidated.
    A joint owner of swamp land is at liberty to out and remove timber from the com - munity without becoming amenable to charge of tort or trespass as against the eo-proprietor.
    In such case the person cutting and removing timber for purposes of manufacture without waste or other deterioration to the premises is not liable ex deUeto, but ex quasi contractu. And the measure of damages is the value of the trees, when taken at the stump.
    APPEAL from the Twenty-third District Court, Parish of Iberville. Talbot, J.

      Samuel Matthews for Plaintiff and Appellant.

      Sims & Gondran and A. Tabot contra.

   The opinion of the court was delivered by

Watkins, J.

In the former of these consolidated causes the plaintiff seeks to recover of the several defendants damages in solido to the amount of $3366, as the value of his alleged one-half interest in 1122 cypress trees, that they had wrongfully and tortiously cut, felled and removed a certain tract of swamp land, designated as section 62, township 9, of range 10 east, situated west of the Mississippi river, of which she was, at the time, half owner with the plaintiffs in the latter of said consolidated causes — same being a suit for the partition of the common property by licitation.

Some resistance was at first made on the part of the plaintiff Patureau to the order of consolidation, and to an adverse ruling in this regard she reserved a bill. - She, also, appeared and filed an answer in the partition suit, and insisted upon a division in kind. But she subsequently appeared in the consolidated cases and filed a waiver of her demand for a partition in kind, and consented that a sale be made — thus practically removing her objection to the consolidation of the two causes, as her consent to the sale necessarily abandons her claim to a severance.

This leaves but one issue in the case — the value of the trees.

The judge a quo found the number of trees cut to be 824, and fixed their value at $1 a piece at the stump; and gave plaintiff judgment for |412, or one-half of their value.

From that decree plaintiff Patureau appeals, and demands an increased allowance.

Whether or not the amount of the judgment should be increased depends upon one ruling of the judge a quo, rejecting evidence of “the market value ” of the raw material — that is to say, the value of the trees for the purpose of the manufacture of the trees into lumber, thus restricting the plaintiff to the value of the trees as they were taken in the forest.

His theory was, that inasmuch as the Wilbert Sons Lumber and Shingle Company was the half owner with Mr. Patureau of the lands as well as all the timber growing thereon, they had a perfect right to cut and remove the timber therefrom without becoming amenable to a charge of trespass on the part of the co-proprietor; and, possessing that right, it had a corresponding right to contract with others to cut and remove timber for it without their becoming thus amenable; hence defendants were not liable ex delicto, but only ex quasi contractu.

This proposition is not quite clear or altogether free from difficulty, but we can not see how defendants can be held liable for tort or trespass on land in which they have a one-half interest to the other co-proprietors by the simple cutting and removing of trees for manufacture and sale, in the ordinary course of affairs, and without waste or destruction.

A simple course is always open to a dissatisfied co-proprietor, suit for partition, and that has been availed of.

Under the law and evidence, the judgment appealed from seems to have done substantial justice, and it is affirmed.


author: McEnbry, J.

text:
    No. 10,980.
    J. T. McClellan, Tax Collector, vs. R. L. Pettigrew.
    The agent of the manufacturer of clocks in another State who solicits orders for them in Louisiana is not subject to the payment of a license tax.
    The agent would be liable to the tax imposed by See. 23, Act No. 150 of 1890, if the clocks had been shipped to Louisiana, and after they had been located in Louisiana, the agent by peddling them disposed of them.

      Whether the tax can be imposed, either directly on the goods introduced into the State, or by license on the party, who is entrusted with their sale, depends upon the fact, whether the goods have been incorporated into the general mass of property subject to taxation.
    If the manufacturer in another State sends an agent to Louisiana to find a purchaser for his manufactured goods, still at the factory, and he takes orders and the goods are shipped directly to the agent to be delivered to the purchaser, he is not liable to said tax imposed by said act. It is immaterial whether the sale is perfected by delivery. The clause of the Constitution of the United States which declares that Congress shall have the power to regulate commerce among the several States extends to negotiations for the sale of manufactured articles solicited in another State. Therefore any license tax imposed upon an agent or solicitor for soliciting orders for said goods, by sample, is in violation of said clause of the Constitution of the United States.
    A tax collector has the same remedy to enforce the payment of parish as State taxes and licenses.
    A tax on a peddler is sufficiently graduated when a specific sum is imposed upon them.
    Montgomery, J. PPEAL from the Eighth District Court, Parish of Madison.

      A. L. Slack for Plaintiff and Appellee:
    1. A suit against a corporation, improperly docketed as against the agent, individually, can notprejudice plaintiffs rights, if from the petition and the admissions it appears it is in fact a suit against the corporation. '
    2. A tax collector has the same remedy to enforce the collection of parish as State taxes. Sec. 6, Act 106 of 1890; Sec. 84, Act 1888, p. 139. The imposition of a license tax carries with it the implied power to collect it.
    3. A license tax at a stated sum against clock vendors is sufficiently “ graduated.” State vs. Chapin &Generelly, 35 An. 76; 40 An. 463.
    4. Inter-State Commerce. A license tax against one who, as the agent of a firm in another State, simply canvasses for his principal and takes orders which are sent to and filled by his principal, is a regulation of commerce. Inre White, Am. Dig. 1891, p. 740; but where the agent exhibits samples and the sale is conditional on the delivery of the goods, and they are consigned to the agent in this State and are by him delivered to the purchaser, this is not a restraint on commerce. Robbins Case, 120 U. S. 486, and cases cited below.
    5. A license tax on clock vendors, under Sec. 13, Rev. Act 1890, where no discrimination is made, is legal and not in restraint of commerce. Howe Ma. Co. vs Gage, 676; Am. Dig. 1890, p. 631; Robbins vs. Dist., 120 U. S. 489; Am. Dig. 1889, p. 603; Am. Dig. 1890, p. 631; Am. Dig. 1891, p. 35; lb. p. 740.
    6. The rule simplified is: Mere taking of orders to introduce goods into this State is interstate commerce; but when orders are taken, and, under the same, goods are consigned to the agent here and are by him delivered here to the purchaser, this is no restraint on commerce, and such business is taxable, as it is carried on in the State concerning property that has become mobilized with the mass of the property in the State. See authorities above.

      Bell & Randolph for Defendant and Appellant:
    Section 13 of Act No. 150, Acts of 1890, which declares “ all traveling vendors of stoves, lightning rods and clocks shall pay license annually of $200 in each parish of the State,” in respect to appellants, is repugnant to paragraph 3, Sec. 8, Article 1, of the Constitution of the United States and the license demanded of them is illegal. 39 An., p. 630 and p. 853; Robhins vs Taxing District, Shelby County, Tenn., 120U. S. 489; State vs. Agee, Yol. 3, Southern Reporter, p. 856; In re Kimmel, 41 Red. Reporter, p. 775; Asher vs. State of Texas, 128 U. S. 129.
   The opinion of the court was delivered by

McEnbry, J.

The plaintiff tax collector proceeded by rule against the defendant as agent of the Seth Thomas Clock Company, a corporation domiciled in the State of New York, to enforce the collection of State and parish licenses against said company as clock vendors, imposed by Sec. 13 of the Revenue Act of 1890.

An exception was filed by defendant, denying the right of the plaintiff to sue for the lieense due the parish of Madison.

The tax collector needs no special authority to collect the tax. The amount of the tax and the delivery to him of blank licenses and the tax rolls is a sufficient basis for his authority to enforce the collection of the tax or license.

But we think the authority for him to collect by legal process is contained in Act 106 of 1890, and Act 84 of 1888.

The exception was overruled, and the defendant answered denying liability because the license was not graduated, and that the license imposed was a tax upon interstate commerce.

The license tax was a specific sum for the business conducted by defendant. It was the only practical method of imposing the license tax, as there was no means of graduating the license among diferent peddlers of the same kind of goods. 40 An. 463; 35 An. 76.

On the second objection, the facts agreed upon to determine the liability of the defendant are as follows:

That the agent Pettigrew is temporarily in the parish of Madison as the solicitor of the Seth Thomas Olock Company, a corporation domiciled in the State and city of New York, a manufacturer of clocks, and that the said Pettigrew is engaged in said parish, in soliciting, orders from purchasers with a view of introducing said clocks into the State. That he obtains orders, forwards same by mail to the said clock company, then ships the clocks to points convenient to the-purchaser, and they are delivered by the company at its own expense in this parish. There have been two wagons employed to deliver said clocks to the purchaser. This delivery is generally made under the direction of defendant.

The said defendant has no interest in or title to said clocks. The sales are generally made on a credit as per attached blank note, Which is signed hy the purchaser at the time of purchase, and forwarded to said Seth Thomas Clock Company. In traveling and soliciting said orders as above said defendant carries along a sample clock to show its style and operation and makes his sales by said sample.

For his services he is paid a salary by said clock company.

It is admitted that on orders so received said company has delivered clocks in this parish to purchasers. It is admitted parish license is same as State, as provided by Sec. 13 of the revenue act.

The note attached to the agreement, and a part of it, is as follows: “ |36. -P. O. State of--, 189 — ,

“ On or before the first day of-after date, I promise to pay to Seth Thomas Clock Company, or order, the thirty-six dollars, value received, without discount or offset, waiving all rights to exemption allowed us by law as to the debt, with interest at the rate of eight per cent, from date, if not paid when due and presented. This note is given for one Fashion Calendar Clock, which I have this day purchased from said Seth Thomas Clock Company, to be delivered at-premises within-days from this date. This note is to be void only upon the condition that said Seth Thomas Clock Company refuse to deliver the said Fashion clock as above specified, and for no other cause whatever.

There are no outside contracts or conditions affecting the sale of this note except what is herein specified.”

There was judgment rendered in favor of the plaintiff, the tax-collector, from which the defendant appealed.

The reasons assigned for the judgment were that when the clocks reached Louisiana they were still the property of the defendants and remained their property until delivered to the purchasers; that the agent was not a drummer but a vendor of clocks, as the sale was not completed until the clock was delivered to the purchaser.

If the clocks had been shipped to Louisiana, the place of their destination, and were to remain there until a purchaser could be found, there can be no doubt that they would then have been incorporat.ed into the general mass of the property of the State, subject to taxation.

This is clearly enunciated in the cases of Machine Company vs. Gage, 100 U. S., page 676; Brown vs. Houston, 114 U. S., page 622; and Robbins vs. Shelby County Taxing District, 120 U. S. 489; Hardware Company vs. Sheriff, 39 An. 849.

In the Robbins case, 120 U. S. 489, the court said :

“Ina word, it may be said that in the matter of interstate commerce the United States are but one country, and are and must be subject to one system of regulations, and not to a multitude of systems. The doctrine of the freedom of that commerce, except as regulated by Congress, is so firmly established that it is unnecessary to enlarge further upon the subject.

“In view of these fundamental principles, which are to govern our decision, we may approach the question submitted to us in the present case, and inquire whether it is competent for a State to levy a tax or impose any other restrictions upon the citizens or inhabitants of other States, for selling or seeking to sell their goods in such State before they are introduced therein. Do not such restrictions affect the very foundation of interstate trade? How is a manufacturer or a merchant of one State to sell his goods in another State without in some way obtaining orders therefor? Must he be compelled to send them at a venture, without knowing whether there is any demand for them?

The prohibition to levy a license for the sale of goods situated in another State does not depend upon the actual sale of the goods. It extends to the negotiation for the sale of the goodáj to their introduction into the State, and the opening a market for them.

If the goods are situated in the State, having been shipped there for sale, and the negotiations are then made in relation to their final disposition, they are subject to taxation, as they have been incorporated into the general mass of property subject to taxation.-

It does not then make any difference where they were manufactured.

Had the defendants shipped their clocks to the State, and then endeavored to find purchasers for them by peddling them through the parish of Madison, they would have made themselves liable to the license imposed by the revenue Act of 1890. 100 U. S. 676.

The admissions show that the defendant employed a solicitor who exhibited a sample clock in order to procure orders. ■ The clocks were in New York at the manufactory when the orders were solicited.

When an order for a clock was obtained it was shipped to the defendant solicitor for delivery. He delivered them by a wagon, having two of these vehicles in his service. The clocks were shipped to convenient points for delivery to the purchaser by defendant’s agent.

After the orders were obtained the clocks, in fact, were shipped directly to the purchaser.

The fact that their agentjreceived and delivered them can not so locate them in the State as to make them a part of the general mass of the property subject to taxation. They became so when delivered to the purchaser.

It is therefore ordered and decreed that the judgment appealed from be annulled and reversed; and it is now ordered that there be judgment in favor of defendant, and plaintiff’s demand be rejected a.nd dismissed.


text:
    No. 10,999.
    Succession of A. G. Waddell.
    On opposition to account.
    The widow and children having proven their necessitous condition at the death of the husband of the former and the father of the latter, are entitled to the * amount of $1000 from the assets of the succession.
    From this amount must be deducted the value of the property of the succession she has received. *
    The succession should not receive credit for the value of property the title to which is not proven.
    The widow and minors’ portion being a provision for the destitute, can not be waived in favor of a creditor and carried on the account of administrator as a claim ranked after his.
    Privileges on a crop must be paid from the proceeds of the crop on which advances were made, and not from the proceeds of crops of subsequent years.
    Protest was notnecessary; fee can not be charged.
    PPEAL from the Eighth District Court, Parish of East Carroll. Montgomery, J. _

      J. M. Kennedy and E. J. Deloney for Tutrix and Administrator, Appellees,
    cited: C. C., Art. 3252: 31 An. 545; 32 An. 459; 29 An. 703; 27 An. 99; 13 An. 352.

      G. S. Wyly, contra,

    cited: C. C., Art. 2418, Art. 3252, Arts. 534,. 536, 549; 11 An. 386.
   The opinion of the court was delivered by

Breaux, J.

The succession of A. G. Waddell was opened in September, 1887, in which month the administrator qualified. The decedent left a widow and four minor children.

The administrator, in January, 1889,- filed a provisional account, showing for distribution a balance of $2660.04.

On the tableau of debts and distribution of funds he placed the claim of the widow and the children of the deceased as creditors for $1000, as being in necessitous circumstances and as not possessing that amount in their own right.

Jane Waddell, widow and tutrix, intervened, joining the administrator in his petition, that the tableau allowing her $1000 be homologated.

R. H. Hamlin, D. G. Tutt Grocer Co., and Chaffe & Powell opposed the account and tableau.

The administrator carried the account of D. G. Tutt Grocer Co. on the tableau for the sum of $122.60, as ordinary creditors.

This firm opposed on the ground that they had a right to $155.12.

The court amended the account and allowed $142.10.

The only remaining difference as to the creditor is, with reference to a fee of protest of $3.02.

The administrator carried the claim of Chaffe & Powell on the tableau for the sum of $1411.33, with privilege on the crop, as furnishers of supplies, and $414.73 as an ordinary debt.

They opposed the account and tableau, alleging that under their contract they were to impute the payments as they saw proper; that after exercising that right of imputation they aver that they remained creditors of the succession for the sum of $1853.45, being a balance of advances to cultivate, gather and prepare for market the crop in 1887, on which they claim a privilege and pledge under their contract.

The opposing creditors to the account opposed the $1000 to JaneWaddell, widow, and children, as not being in necessitous circumstances, and they alleged that she had taken possession of succession property exceeding said amount, disposing of part of same, and that-she had not rendered an account thereof to the administrators.

Judgment was rendered homologating the account, amending the t ableau as before mentioned, in so far as relates to the claim of D. G. Tutt Grocer Company, and dismissing the opposition of Chaffe & Powell. The latter have appealed.

The opponents admit that the administrator’s account is in the main correct.

The issue relates to the $1000 allowed to the widow and minors; the total due Chaffe & Powell and the privileges they claim, and to a very small amount claimed by Tutt Grocer Company, to which we have already referred.

The $1000, widow and minors’ claim. The widow and minor children, having proven their necessitous condition at the death of the husband and father, are entitled to the amount of $1000, less the value of any property received by her.

It is contended by the opponents that the value of six mules should be deducted from the amount. They charge that these mules were appropriated by the widow.

It is not stated that they were appraised and their value carried in the inventory as part of the assets of the succession.

The administrator’s acts are not complained of, and we have no, reason to infer that he has not properly discharged his trust,

He qualified a short time after the succession had been opened. Prior to qualifying he was the custodian of the property.

It is not stated that the least claim was made by him to these mules.

There were still three of these mules remaining when the case was tried. Two had died. The number was five, not six as claimed.

Some time prior to the death of Waddell these mules were assessed in the name of his mother-in-law.

She claimed them, took them in her possession, and on the trial offered testimony to prove that they are hers.

While the testimony is not conclusive as to her title, there is no question that she was in possession of the three remaining when the case was tried, and that she took possession of the five as an owner.

The succession can not be credited with the value of property to which title is not proven, and which is not proven to have been appropriated by the widow and tutrix.

The widow admits that she kept for the use of herself and children what little furniture there was. Its value was $40, with which she must be charged.

It is not proven that the other items claimed by opponents as amounts which should be charged against the widow and tutrix were appropriated by her.

Alleged waiver. The widow and minor’s portion, under Act 17, March, 1852, is a provision for the destitute, and can not be waived in favor of a creditor and made subordinate to his claim during the .settlement of the succession. It must be paid without reference to ¡any waiver.

Imputation of payment. The creditors Ohaffe & Powell oppose the balance in their favor against the succession, as shown in the tableau as being less than the amount due them. Their witness states that on the 18th day of February, 1887, A. G. Waddell owed them a balance of $279.97, advances on the crop of 1886.

They had in their hands at the time of the crop of 1886 ten bales of cotton, which they sold.

The sale amounted to $416.79, leaving a balance to be credited on the account of 1887.

The amount of their account is $1863.45, only $1445.66 of which is secured by privilege on the crop of 1887, after deducting the credits to which the succession has a right.

Fee of protest. The note protested had been sent for collection It was not transferred.

There was no necessity for protest and the fee is not chargeable.

“A promissory note not having been indorsed there was no need of protest.” Tiedman, p. 321.

It is ordered, adjudged and decreed that the judgment appealed from be amended by charging the widow and tutrix Jane Waddel with the sum of $40, tojbe deducted from the widow and minors’ portion ; that the claim of Powell & Ohaffe be increased from $1826 to $1863.45; of that amount the privilege on the crop of 1887 is increased from $1411.33 to $1445.66.

After amendment judgment affirmed at appellee’s costs.


author: Brbatjx, J.

text:
    No. 11,007.
    Edwin Telle et al. vs. The School Board of St. Tammany Parish et als.
    The residents and alleged tax payers in a township in whom is vested the title of the 16th section for the maintenance of the schools have the right to invoke the interposition of the court to annul a sale of this section.
    Tender as a prerequisite to the suit can not be required. The price was not received by the plaintiffs.
    No title passed to the adjudicatee of the property.
    The amount should be returned by the authority, by which it was received. In the meantime plaintiffs can prosecute their suit to have the sale annulled.
    The general government donated the 16th sections to the townships and authorized their sale with the consent of the inhabitants residing within their respective limits.
    The legislative department of the Stated in compliance with the conditions of the grant, adopted laws requiring elections to be held to ascertain the will of a majority of the voters residing within the townships and providing certain prerequisites for the sale.
    An election not having been held in the .township, the return of the election not being sustained at all, the adjudication made was null.
    The 16th section offered for sale should bring its appraised value, which can not be less than $1.25 per acre.
    APPEAL from the Eighteenth District Court, Parish of St. Tammany. Thompson, J.

      Chas. T. Madison for Plaintiffs and Appellees:
    1. Sixteenth sections “inplace” were donated by the United States government to the people of the township wherein they lie, and the question of their sale is remitted entirely to these people, and no power exists in any one to sell said land without the consent of said citizens expressed in the manner]prescribed by law. See[5th Statutes at Large, p. 600; R. S., Secs. 2957, 2958, 1313,1314, 1315 and 1316.
    2. Under charge of fraud in the administering of public property, and as thepower of the State Auditor to sell 16th sections is derived from a vote of the residents of the township in which the section is situated, oral proof by these residents is admissible to show that their consent has never been obtained.
    3. Tender, as a condition precedent of a suit in nullity of a judicial sale, is only necessary when the plaintiff is claiming for himself the property sold. What defendant has paid for it is presumably paid in such ease for account of said plaintiff, and should be refunded by him.
    No tender can be made by plaintiffs who, as tax payers, sue for the nullity of public property unlawfully sold.
    The proportion or contribution of each co-plaintiff in the amount to be tendered could not be ascertained.
    4. Tax payers have a standing in court to contestupon proper charges the validity of municipal acts and contracts [under it, whenever its enforcement may increase the burden of taxation. 39 An. 107 and 710.

      A petition o£ tax payers discloses a cause oí action which charges that a municipal corporation has, in excess of its powers and in violation of mandatory and positive laws, disposed of public property committed to its care. See 39 An. 770 and 107.
    School lauds can not be sold for loss than their appraised value, and the appraisement can never be less than one dollar and a quarter per acre. 14 An. 186

      J. Q. A. Fellows for Defendants and Appellants:
    1. That where petitioners do not allege that they are residents of a particular township and had property and paid taxes therein they have no right to institute suitor stand in judgment to annul the sale of the 16th section of such township; that their allegation that they are residents of a certain ward, which may include such township will not suffice to give them a standing in court.
    2. That if wrong has been done to the inhabitants of a township by the parish school board in a sale by it of the 16th section, it is the duty of the district attorney to prosecute the board, and his presence in any suit in reference thereto is essential, and for the judge of the court to instruct the grand jury in reference thereto. Act 225 of 1847, Sec. 34, p. 187.
    3. That when a purchaser of property at public sale is not charged with complicity in frauds or irregularities by which the order of sale was obtained,' nor any knowledge thereof, and when there are no indications of fraud or irregularity in the record, there is no cause of action shown against him.
    4. A purchaser at a public sale for cash, who has paid the price of adjudication and received a deed to the property purchased, should have had tendered to him the price paid preliminary to the institution of the suit. Barelli vs. Gauche, 24 An. 324.
    5. A party, whose title is attacked, acquired at a public, judicial or semi-judicia sale, on the ground of irregularities or fraud, by which the order of sale was obtained; can not be required to go behind the order of sale, unless there be a charge of fraud, brought home to him as a party thereto; that he is protected by the decree or order of sale, and is not bound- to look beyond it. Succession of Pinnegar, 25 An. 55; Trezevant vs. Courtney, 23 An. 628; Burke vs. Tregüe, 22 An. 629; Woods vs. Lee, 21 An. 505.
    6# A survey preliminary to the sale of a 16th section is not required. Sec. 1313, R. S., excepts the 16th section. The return of the parish treasurer, whose duty was to have had the surveymade, if one was necessary, and thepayment of the cost of survey, is not overcome by witnesses living at a distance, who testify that they did not know a survey was made
    7. Section 1315, R. S., refers to school lands belonging to the State, and does not apply to 16th sections, which are not lands belonging to the State, but to the township in which they are situated. There is no necessity of a resurvey of the 16th section preliminary to a sale.
    8. There is no law fixing a limit as to quantity or size of parcels in the sale of the 16th sections. This sale was made in quarter sections.
    9. In sale of lands surveyed by the United States, there is no other description as to lines and boundaries necessary than to designate the land by the section (or part of a section), township and range.
    10. There is no other limit as to the price of 16th sections than that of appraisement. This land was sold for fifty cents an acre, the value fixed by three sworn appraisers, and the highest price for which unimproved lands sold in the neighborhood; one (See. 9, adjoining) being seventy-five oentsper acre, there could not be a rescission of sale beyond moiety.
    11. Sixteenth section lands, scrip for such lands, seminary lands, Agricultural and Mechanical College lands, swamp lands, public improvements lands, and free school lands, are separate and distinct classes of lands and have had separate legislation for each, and the laws framed for the administration of the free school lands do not apply to any of the other classes of lands, and especially to the 16th sections.
    12. The return of the justice of the peace who held the election is the best evidence of where and how and when the election was held. His return, a sworn officer of the law, can not be disproved, nor would such election be held invalid, if, after four years, parties who remembered with difficulty most transactions should say they did not vote, especially when no one of them could swear he lived in the township, nor that he was opposed to the sale or would have voted against the sale, had he been present at the election.
    13. Telle, in 42 An. 1155, alleged Taylor had purchased this 16th section for himself (Telle). He can not now be permitted to set up the nullity of the sale.
    14. The admissions of co-defendants of their own turpitude can not implicate the other defendant, when there is no intimation or knowledge on his part of their fraud.
   The opinion of the court was delivered by

Brbatjx, J.

Plaintiffs sue to annul the sale of the 16th section of township 7, range 15 east, adjudicated to defendant Taylor, by the parish treasurer of St. Tammany parish, on the 17th day of December, 1887, for the sum of $250 cash. They charge fraud and allege non-compliance with legal requisites.

The school board joins the plaintiffs. The defendant filed an exception of no cause of action, and that petitioners had no right to stand in judgment. He also pleads a want of tender.

These exceptions were overruled.

The defendant Taylor in his answer sets up the validity of the sale.

Judgment was rendered against him, from which he prosecutes this appeal.

No evidence was introduced on the trial of the exceptions.

The District Judge having heard the testimony of the witnesses, on the merits — part of which related to the issues which had been raised by the overruled exceptions, decided that the alleged tax payers reside in said township.

The conclusion of the District Judge on an issue of fact will not be disturbed on appeal, where no error is shown and it appears correct. 37 An. 623. The names of at least two of the petitioners are on the list of voters, and, it is alleged, voted in favor of the said sale.

If they were residents of the township, and voted for the sale, they are to be considered as residents as alleged in the petition to have the sale annulled.

The illegal disposition of public property can be avoided or annulled at the instance of individual tax payers.

“ The courts may be safely trusted to prevent the abuse of their process in such cases.” Orampton vs. Zabriskie, 101 U. S. 601.

We will not maintain the plea of the want of tender.

The adjudicatee has placed the amount of his bid — less costs — in the treasury of the State.

The title of the land has not passed from the township to the said defendant.

Those applying for a decree annulling the sale have authority to stand in judgment.

They have not the least control over the price received.

The State is a trustee of the lands or of the proceeds of their sale.

When the lands are sold in compliance with law the amount is placed to the credit of the township, and the interest is applied to the maintenance of its schools.

If the title is not such as to divest the owner, the trustee holds the proceeds of the sale illegally; it should be returned to the purchaser.

The State, as an act of justice, should return the amount, and doubtless if application to the legislative department be made, authority for its return would be granted.

In the meantime we can not give sanction, even temporarily, to a sale that is null, by deciding that the defendant shall hold until the plaintiffs tender an amount which they have not received and for which they are not responsible.

On the Merits.

The sixteenth section should be sold in the manner directed by law, and in the apportionment of the interest paid by the State on the proceeds, each township is entitled to the interest on the sums arising from the sale of its school lands.

Act of Congress of the United States approved February 15, 1843, authorized the sales of lands previously reserved and appropriated for the use of schools within this State, and authorized the investment of the money arising from the sale thereof in some productive fund, and the proceeds to be applied under the direction of the legislature to the support of the schools within the several townships for which they were reserved, and for no other purpose.

These lands are to be sold under this act with the consent of the inhabitants of the township.

This was made one of the conditions of the grant.

The right of the general government to dispose of these lands, as has been done, and of requiring compliance with the condition of the donation has never been denied.

In several decisions of the United States Supreme Court the right to require compliance has been recognized.

In conformity with the requirement by the government the State legislature, also, has adopted laws to govern in the disposition of these lands.

It is made the duty of the parish treasurers to take the sense of the inhabitants of the township whether or not any land donated by Congress for the use of schools shall be sold, and the proceeds invested as authorized.

Polls shall be opened at the most public places in the township after advertisement of thirty days.

The evidence satisfies us, as it did the District Judge, that no polls were opened and no election was held.

Witnesses whose names appear on the list of the names of voters, as having cast their votes at the election for the sale, declare that they did not vote.

Twelve names are on the list as having voted.

The witness at whose residence the election is returned as having been held declares that he saw no box and no ballots. Only two persons came. They did not vote, for no election was held, he says. The return of the justice of the peace that twelve persons voted is not sustained by the testimony of record. Evidence that required notice of the election was given is not satisfactorily shown. The law was not complied with. It was never contemplated that these lands should be disposed of without obtaining the consent of a majority of the voters after a compliance with the legal prerequisites.

Without an election the order to sell was void and the adjudication did not confer any rights.

In selling school lands a sale not authorized by an election is a nullity. The right to sell depends upon compliance with the statute.

The land was sold for less than $1.25 per acre.

Sec. 34 of Act. 321 of 1855 provides that in no case shall the land be adjudicated for less than $1.25 an acre. This act did not require an appraisement of school land before the sale.

Sec. 34 of said act makes provision for an appraisement.

In construing these two acts the court held “ that the meaning of Sec. 34 is, that the land should bring its appraised value, but that in no case it should be appraised or sold for less than $1.25 an acre.” School Directors vs. Coleman, 14 An. 186.

To the same effect is Sec. 2944 of the Revised Statutes.

In the case to which we have just referred the sale was annulled solely on the ground stated.

In the case under consideration, the advertisement was not made as required; the election was not held, and the property was adjudicated for much less than the amount fixed by law.

Judgment affirmed at appellant’s costs.


author: Bermudez, C. J.

text:
    No. 11,000.
    G. J. Reiley vs. His Creditors.
    A devolutive appeal lies from an interlocutory decree consolidating-the proceedings in a surrender made by a commercial partner, individually to his individual creditors, with those of the surrender made by him and his co-partner, as commercial partners and as a firm, to the partnership creditors, even though a suspensive appeal does not lie from the decree, because its execution could cause no irreparable injury.
    A decree consolidating the two proceedings is proper. Far from causing any injury to either class of creditors, or to any party concerned, the decree enures to the benefit of all such parties, by securing to them a speedy and uniform administration of their respective rights.
    APPEAL from the Sixteenth District Court for the Parish of East Feliciana. Brame, J.

      W. F. Kernan for Appellants.*

      John H. Stone contra.

   On Motion to Dismiss..

The opinion of the court was delivered by

Bermudez, C. J.

It is claimed that the appeal herein should be dismissed, for the reason that the decree complained of is not a final judgment, but an interlocutory order, the (execution of which can cause no irreparable injury.

It appears that the two members composing the firm of Reiley & Co. went into court as co-partners, claimed the benefit of the insolvent laws and surrendered to their creditors all the property of the concern.

The cession was accepted and a syndic was elected and qualified.

Reiley, one of the members, subsequently made a surrender in his. individual capacity, as well to his personal creditors as bo those of the firm to which he belonged, giving statements of his assets and of the respective liabilities of both the firm and himself.

The cession was accepted, and on the application of certain creditors a provisional syndic was appointed.

The syndic elected in the insolvency proceedings of Reiley & Oo. then intervened in those of Geo. J. Reiley and moved that the proceedings be consolidated with those in the insolvency of G. J. Reiley & Oo., for the reason that Reiley, a commercial partner of Reiley & Oo., should have made a surrender of his individual estate in said insolvency, and that the administration of his insolvent estate should be committed to the syndic of the insolvency of Reiley & Oo.

The motion was opposed by Blair, an individual creditor of Geo. J. Reiley.

After hearing, the court ordered that the motion to consolidate be sustained and the opposition of Blair be overruled.

From this decree Reiley and Blair have taken an appeal, furnishing a bond for $250 if the appeal be suspensive, and for $100 if devolutive. The appeal was perfected by their giving each a bond for $100, therefore not as a suspensive but as a devolutive appeal.

Contending arguendo that no suspensive appeal could be taken from the order to consolidate, it by no means follows that a devolutive appeal does not lie from it. The appellants can not be deprived of the constitutional right of appealing in that way; otherwise no interlocutory decree against them could ever be revised and corrected, if erroneous.

The motion to dismiss is overruled.

On the Merits.

The question presented is simply whether the decree consolidating the proceedings in the insolvency of Reiley as an individual with those in the insolvency of the commercial firm of G. J. Reiley & Co. was correctly rendered.

The cession was made in the last proceedings, by G. J. Reiley and John B. Dunn, who appeared in proper persons for the purpose. The bilan and affidavit are signed by both of them.

When the cession was accepted by the court all the property of the insolvent debtors vested fully in their creditors, and the syndic, when elected, was entitled to claim and recover and administer the same according to law. R. S. 1791.

The members, as individuals, were liable to the partnership creditors in solido as much as though they were individual creditors, although their rights against the property surrendered ranked those of the individual creditors. If the property abandoned proves insufficient to pay the partnership creditors, these can have recourse against the individual property of the members in their individual capacity. So that the creditors of the firm are also the creditors of the individuals composing it, and remain such, notwithstanding an Individual surrender; the individual creditors having, however, no preference over those of the partnership on the individual property of the individual members.

This is so true that the syndic of the partnership insolvency would have a right, in a proper case, to seize the individual property of the members to secure the claims of the partnership creditors.

It is notorious to the profession and to the bench, that it is usual that whenever a surrender is made to partnership creditors the individual members, at the same time, make a cession of their individual property to their individual creditors, and the rights of both classes of creditors are liquidated and disposed of in the partnership insolvency proceedings.

It is impossible to conceive why, where this is not done by the surrendering partners, the court should not cumulate the proceedings in the individual cession with those in the partnership surrender*

It does seem that, on the contrary, far from causing any injury, specially an irreparable injury, such action on the part of the court would benefit both the partnership and individual creditors of the members, as partners and as individuals, by securing to them a speedy and uniform administration and liquidation of their respectiv rights.

Judgment affirmed.