author: Fenner, J.

text:
    No. 10,498.
    Henry L. Lazarus vs. Arthur McGuirk.
    1. When the Constitution vested this Court with original jurisdiction in cases involving the removal of judges from office, the grant carried with it all the powers necessarily or usually incident to such jurisdiction, including those to execute its decrees hy usual process, to control, to regulate and restrain such execution in proper cases, and to set aside and annul its own judgments in the eases and by the methods provided bylaw.
    2. Plaintiff and defendant wore the only parties to the judgment attacked and the only necessary parties to this action.
    3. Prescription against the, action of nullity for fraud only runs from date, of discovery of the fraud.
    4. The rule that the judgment silences all defences which might have been urged against its rendition can not be invoked in an action of nullity for fraud when the fraud alleged consists in acts of the party which prevented his adversary from setting up his defences.
    5. The grounds of fraud specified in C. P. 607 are illustrative and not exclusive, and the jurisprudence of this State emancipates the terms “ fraud and ill practices” from control by those examples and vests the courts with discretion to determine what kind and degree of fraud and ill practice should vitiate a judgment according to the principles applied to such matters by courts oi equity.
    6. A judgment will be annulled when a party, having good defences to an action, is prevented from urging them by the acts, promises and representations of his adversary, in which ho trusted, and by reason thereof, a judgment lias been rendered which it is against good conscience to execute.
    7. Prom the allegations of the petition, which are to bo taken as true, it does not appear that the defences claimed, or the agreements and understandings alleged were tainted with any illegal or immoral purposes or consideration: and were it otherwise, the defendant who is invoking the aid of the court to enforce a judgment obtained through such means would not be in position to object to allegation and proof by the other party of the illegal and immoral foundation thereof.
    REPLICATION for Injunction.

      Harry H. Hall for Plaintiff:
    I. A judgment which is attacked by the action of nullity within one year can nol be pleaded as res judicata, to the suit for nullity. Edwards vs. Edwards, 29 An. 599 ; 40 An. 33R.

      2. Obligations may he extinguished by remission. C. C. 2130, 2199, 2201; 1 An. 194; 39 An. 302; 5 An. 533; 6 An. 605.
    3. Prescription against the action of nullity for fraud only runs from the discovery of the fraud complained of. C. P. 613.
    4. The grounds of fraud specified in O. P. 607 are illustrative and not exclusive.. 10 An. 19; 2 La. 139; 3 An. 646; 6 An. 799; 23 An. 147,13; 1R. 642; 11 An. 333.
    5. The particulars of defence need not be disclosed. 11 An. 34.
    6. Ajudgmentwillbe amended where byreason of something doneby the successful party the unsuccessful party has been byfraud or deception prevented from fully exhibiting his case. 98 XT. S., XT. S. vs. Throckmorton; Wells on lies Adjudicata, See. 499; 20 Connecticut 544; 7 Illinois 385; 3 Maryland Chan. 392; 1 Johnson’s'R. Y. Chan. 320; 2 Iowa 55; Karl of Bandon vs. Becher, 3d Clark & Fennelly’s House «’of Lords Reports, page 510; 4 Sawyer 51; 15 Hun. 170; 18 Chancery Appeal (L. R.), Ochcnbein vs. Papelier; 12 N. Y., Hobson vs. Pierce; Holland vs. Trotter, 22 Grattan; Pierce vs. Olney, 20 Conn.; 28 Conn. 555; 7 Cranch 336; 47 R. H. 509; Freeman on Judgment, paragraph 492; see also paragraph 489 and note 2; Read vs. Harney, 23 Arkansas 44; Kerr on Fraud and Mistake, 352: High on Injunctions, paragraphs 181,199, 200, 202, 203, 252.

      Giranlt Farrar for Defendant:
    1. Has this Court jurisdiction to entertain this suit ratione materias, if it be an original proceeding? Const., Arts. 81, 200.
    2. If this suit is not an original suit, but is a proceeding in the suit of State ex rol. Attorney General vs. Henry L. Lazarus, Judge, then all parties to that suit must be made parties here. 15 An. 273, Winn vs. Hickson; 23 An. 569, Bell vs. Silbernagel; 26 An. 156, Willis vs. Peet.
    3. The right of action is based upon an alleged conspiracy or understanding, whereby the State was to be made to pay Lazarus’ debt. Gill vs. Williams, 12 An. 219.
    4. Alleged defences set up in the petition are destructive of each other, e. g., tha the amount of the decree was excessive and unjust as to Lazarus, but was approved by himself and all of his counsel as just against his co-defendant in rule. It was his duty to the State to set up defence of excess of amount. (> Wall. 327.
    5. All matters of defence that might have been and ought to have been set np arc res adjudicata.

    6. This suit is virtually a prayer for a new trial, made more than six judicial days after judgment. 1 Johnson R. Y. Chancery, 320.
    7. The only consideration or cause of alleged agreement was nudum pactum. (a) (See 3). (b) Article 1893 of Civil Code requires that party making are-mission “ shall have capacity to alienate.”
    8. The petition discloses no cause of action on its face. The alleged fraud, if any, was committed by Lazarus himself against public justice.
    9. This proceeding is a stale demand and is barred by the prescription of one year. Authorities in brief.
   The opinion of the court was delivered by

Fenner, J.

The petitioner invokes the exercise of our original jurisdiction to restrain, by injunction, the execution of a judgment rendered by us in the exercise of the same jurisdiction, and to annul and set aside the same judgment on the ground that it was obtained through fraud and ill practice.

Although no express pleading was filed to that effect, our jurisdiction to entertain such a cause is questioned in the brief of defendant’s counsel, and as it is a matter of which we may and must take cognizance, however brought to our attention, we will first consider it. We are of opinion that when the Constitution conferred upon this court original jurisdiction to hear and decide causes involving the removal from office of inferior judges, it conferred, at the same time, all the powers necessarily or usually incident to such jurisdiction, including the powers to execute our decrees by the writs provided for that purpose, to control, regulate and restrain such execution in proper eases, and to annul our judgments in the cases and by the methods provided by law.

This principle is expressly declared by the Code of Practice, which announces: “All judges possess the powers necessary for the exercise of their respective jurisdictions, though the same be not expressly given by law.” Art. 130.

Neither the Constitution nor any particular law confers upon this court express authority to issue the writ of fi. fa.; yet we issued it when called on, because it was the mode provided by law for the execution of judgments by courts of original jurisdiction.

Por the same x’eason, though the law does not expressly authorize us to issue the writ of injunction, yet as it is the legal method of restraining execution by the courts which issued it, in proper cases, we granted our order for the writ.

So, as the law authorizes courts of original jurisdiction to revise and set aside their own definitive judgments in an action of nullity brought on proper grounds, we may entertain such an action to annul a judgment rendered by us in the exercise of original jurisdiction. O. P. 556, 604, et seq.

All these proceedings are germane and ancillavy to the case in which our original judgment was rendered, and to the original jurisdiction vested by the Constitution and exercised therein.

We, therefore, conclude that the general objection to our jurisdiction is not good.

The defendant has filed several exceptions to the action, founded in law, which are the sole matters presently submitted for determination.

For the understanding and decision of the exceptions it will be necessary, first, to analyze and state the allegations of the petition.

Divested of unusual and unnecessary prolixity, these are substan- . tially as follows:

1. That at the trial in this court of the cause of State ex rel. Attorney General vs. Lazarus, defendant was appointed by order of the court to act as stenographer therein.

2. That in the decree rendered in said cause, petitioner was condemned to pay all costs.

3. That after rendition of said decree, defendant, in common with the sheriff and the clerk of court, voluntarily and expressly remitted and released petitioner from all liability for costs due to them respectively, which remission was accepted by petitioner.

4. That after said release, defendant, being advised that the State, as plaintiff in said cause, was primarily liable for costs, applied to petitioner to approve his bill of costs, which was done by petitioner’s counsel under his direction.

5. That in the month of May, 1888 (omitting reference to the first discontinued rule), defendant took a rule upon the State and upon petitioner to show cause why his bill, already approved by petitioner’s counsel, should not be taxed as costs in the sum of §3220, “and execution issued accordingly.”

6. That on receiving notice of said rule, petitioner called on defendant and asked him whether he meant, in violation of his release and remission, to obtain judgment against him, petitioner, for his bill; that defendant then disclaimed any such purpose; reasserted the remission; declared that the sole purpose of the rule was to have the amount of his bill taxed by the court as the basis for an application to the Legislature for relief and payment; further declared that plaintiff was made a party pro forma under the advice of counsel that he was a necessary party, and to avoid delays and postponement of trial, and requested him not to appear or make defence to the rule.

7. That acting upon defendant’s request, and relying on his statements, petitioner made no appearance or defence to the rule, and abstained from making defences, which, if interposed, would have defeated the same.

8. That after hearing, this court rendered its decree on said rule, rejecting the demand against the State, and further decreeing: “ By reason of the default of respondent and the law and evidence being in favor of plaintiff in rule and against respondent, it is ordered and decreed that the amount of plaintiff’s demands be fixed at the sum of $3220.” (We amplify the allegations of the petition by quoting the language of our decree referred to, in order to avoid repetition.)

9. That after rendition of said decree, defendant, time and again, repeated the assurance that he had released petitioner from all liability for his said costs, and devoted himself to efforts to get a bill passed through the Legislature for his relief.

10. That petitioner trusted and confided in defendant’s statements; and, that defendant never made any demand on him for payment, or attempted, in any manner, to execute the decree until December 2, 1889, when the Ji. fa., now complained of, was issued.

11. That petitioner’s inactivity and failure to defend said rule were induced by the aforesaid fraudulent conduct and representations of defendant, and that, but for the same, he had and would have interposed valid defences thereto, such as:

1. The remission and release which defendant had made of his claim.

2. That the claim formed no part of the costs which, as defendant in the original cause, petitioner was condemned to pay, but arose out of a contract of employment (whatever this may mean), etc.

8. That even if the defendant’s claim could be taxed as costs, then petitioner could, in no event, be held liable for more than the costs of taking and writing out the testimony, and certainly not for costs of copies made for the use of members of the court and for opposing counsel, as well as for counsel of petitioner.

4. That the bill was excessive, so far as petitioner was concerned, because rendered while defendant was employed on regular salary by petitioner’s leading counsel, who allowed him to act as stenographer in said cause without suspending his salary, as an act of friendship to petitioner.

5. That he had other good and valid defences which he would have urged, etc.

W e will consider the exceptions interposed by defendant in the following order:

I.

Want of Proper Parties. — The only judgment sought to be annulled is the decree rendered on the rule to tax costs. The petitioners, on whose relation the original suit was brought, were discharged from liability for costs under the plain terms of both the law and the judgment. They were not parties to the rule, and have no interest, direct or indirect, in the judgment therein.

So far as the State is concerned, an effort was made to make her a party to the rule, and a citation was served on the Attorney General, but we held that she was not and could not be made a party, never having given her consent thereto, and that no judgment could be rendered against her. The attempt to make her a party to this suit would be equally vain, and it is manifest that she has not the slightest interest in the judgment attacked.

This exception has no merit.

II.

Prescription of One Year. — Art. 613, G. P., declares: “When a judgment has been obtained through fraud on the part of the plain-' tiff' -- * * the action for annulling such judgment must be brought within one year after the fraud has been discovered. * * ’ ’ In this ease, under the averments of the petition, the fraudulent character and purpose of the representations of defendant, upon the faith of which petitioner permitted a judgment on the rule to go without appearance or defence, were not made apparent nor discovered by him until, in violation of those statements and representations, defendant sought to execute the judgment. Up to that moment, if the allegations be true, petitioner regarded, and had the right to regard, the judgment as being, what upon its face it purports to be, a simple fixing of the total value of plaintiff’s services as a basis f<Jr asking relief from the State, but, under defendant’s representations and agreements, inoperative against petitioner. It was only when defendant issued the fi. fa. that petitioner discovered that the representations which he had believed to be true were false and fraudulent. Whether fraud of this kind be a ground for annulling the judgment will be discussed later, but, if it be, the plea of pre-’ scription is certainly untenable.

III.

Res Judicata. — It is well settled that the judgment sought to be Annulled can not be pleaded as res judicata to the action of nullity. Edwards vs. Edwards, 29 An. 599; Anderson vs. Benham, 40 An. 338.

It is said, however, that the res judicata is not pleaded as against the defences which petitioner might have pleaded in that action. But the action is based on the ground that petitioner was prevented from making those defences by the fraud of defendant. The rule that the judgment silences all defences which might have been urged against its rendition, can not apply to such a'case.

IV.

No Cause of Action. — It is claimed in a separate exception that the petition amounts to nothing more than a motion for a new trial made out of time. The two exceptions involve-the same principle and ■ may be considered together.

It is very clear that this is not a motion for a new trial, but an action of nullity both in form and substance. Although the petition might set forth grounds amply sufficient for a new trial if the motion had been made in time, that would not suffice to maintain the action of nullity, and we must determine whether the petition sets forth sufficient grounds to sustain the latter action, which is all that defendant can require under either exception. •

Art. 607, C. P., provides: “A definitive judgment maybe annulled in all cases where it appears that it has been obtained through fraud or other ill practices on the part of the party in whose favor it was rendered, as if he had obtained the same by-bribing the judge or the witnesses, or by producing forged documents, or by denying having received the payment of the sum, the receipt of which the defendant had lost or could not find at the time, but has found since the rendering of the judgment.”

If the “fraud and ill practices” referred to in the first clattse were confined to acts of the kind and character mentioned in the subsequent illustrations, certainly none such are set forth in plaintiff’s petition, and the exception of no cause of action would be well taken. But this court has repeatedly given a broader interpretation to the article. In an early case the court held that the examples given were not limitative, and that after a judgment had been obtained by which a party will Sustain real injury and which can not be remedied by appeal, he may obtain relief by action of nullity.

“Where the case presents facts on which, in the other States of this Union, a court of equity would interfere.” Chinn vs. Murry, 1, Rob. 523.

The same interpretation has been frequently reaffirmed. Norris vs. Fristoe, 3 An. 646; Swain vs. Sampson, 6 An. 799; Perry vs. Rue, 31 An. 287.

These authorities emancipate the terms “fraud and ill practices” from control by the illustrative examples given, and vest the courts with wide discretion to determine what kinds and degrees of “fraud and ill practices ” should vitiate a judgment, and they open to us the books of equity jurisprudence in other States as aids and guides in deciding such questions. It would be unfortunate if it were otherwise. Fraud vitiates everything, and whatever Protean shape it may assume, justice should be left free to meet and thwart it.

We think the allegations of plaintiff’s petition make out a case clearly within the recognized principles upon which equity will annul judgments at law. The authorities on the subject are very numerous.

While it is undoubtedly the general rule that parties will not be allowed to attack a judgment in order to let in defences which were known and open to him at the trial, yet, in the language of the United States Supreme Court “there is an almitted exception to this general rule in cases where, by reason of something done by the successful party to a suit, there was in fact no adversary, trial or decision of the issue in the case; where the unsuccessful party has been prevented from exhibiting fully his case by fraud or deception practised on him by his opponent.” U. S. vs. Throckmorton, 98 U. S.; Ins. Co. vs. Hodgson, 7 Cr. 335.

Mr. High, in his work on injunctions, lays down the doctrine in terms fully applicable to this' case:

“ Fraudulent conduct and deceitful representations upon the part of plaintiff in an action at law, by means of which defendant, having a meritorious defence, is prevented from interposing it, afford frequent ground for application for the aid of an injunction to restrain the enforcement of judgment thus fraudulently obtained. The general rule upon this subject is well defined and clearly established, both upon principle and authority, and whenever, by reason of plaintiff’s fraudulent conduct or representations to defendant concerning the nature and objects of the action or the purpose of the judgment, or the prosecution of the cause, defendant in the action having a good defence upon the merits is lulled into security, so that he fails to interpose his defence, he is entitled to the aid of equity to prevent the plaintiff from reaping the benefit of a judgment thus fraudulently obtained; the relief is allowed in such case upon the. .ground that when, by mistake or fraud, one has gained an unfair advantage in proceedings at law, which will operate to make the court of law an instrument of injustice, equity will interfere to prevent him from reaping the benefit of the advantage thus improperly gained.” High on Injunctions, Secs. 199, 202-3, 252¿ Freeman on Judgments, Secs. 492, 489; Kerr on Fraud, p. 352; Wells’ Res Adjudicata, Secs. 499, 495.

The Connecticut Supreme Oourt says: “ It is well settled that this jurisdiction will be exercised whenever a party having a good defence to an action at law has had no opportunity to make it, or has been prevented from making it by the fraud or improper management of the other party, and by reason thereof a judgment has been obtained which it is against conscience to enforce.” Pierce vs. Olney, 20 Conn. 554.

The principle is extended to cases where the party’s failing to defend was induced by his reliance on promises and agreements of his adversary, the oourt saying: “ If the complainant was too confiding, it is not for the party who has betrayed that confidence to reproach him with it or take advantage of it.” Weirich vs. DeZoga, 2 Gil. (Ill.) 388.

The case is not different if the agreement or promise, which in duced the defendant to abstain from defence, affected only the effect or execution to be given to the judgment. The Supreme Court of Maryland held that a violation of such an agreement, by giving the judgment a. different effect or execution, would justify relief. Kent vs. Ricards, 3d Md. Chy. 396.

Applying these principles to the case presented by the plaintiff’s petition, taken as true, we find that it possesses the following ingredients :

1. That it is a judgment which it is against good conscience to execute.

2. That the party had good defences to the judgment.

3. That he was induced to abstain from presenting those defences by the acts and promises of his adversary.

4. That by reason of his confidence in those representations and promises, the judgment was obtained without any real adversary, trial or decision of the issues.

5. That the party has been guilty of no laches except in relying on the assurances and promises of his adversary, and that the latter can not impute such confidence as laches, or take advantage of it.

For these reasons we think the exception can not be maintained.

Y.

Finally the defendant excepts that, even if the cause of action were .otherwise sufficient, plaintiff’s petition sets forth, as a ground for relief, an unlawful agreement. between plaintiff and defendant to have the State mulcted for costs for which it was not legally liable, and which was contra bonos mores. We can discover no such agreement propounded, directly or indirectly, in the petition. It is true plaintiff was informed that the object of the rule was to have the amount of his bill taxed by the court as a basis for an application to the Legislature for relief and payment. Was there anything wrong or unlawful in such a proceeding? We ourselves said in our opinion: “We are far from holding that the State is not, in law and justice, bound to pay plaintiff for his valuable services and necessary labor, done in a litigation provoked and carried on in the State’s own interest, and by constitutional direction, in ease his primary recourse against the defendant shall prove unavailing. On the contrary, we consider it her unquestionable duty to provide such payment.”

And what safer, juster or fairer basis for such relief could be laid than in a taxing of the value of the services by this court contradictorily with the Attorney General of the State? We can discover nothing illegal or immoral in such a purpose or in the methods of prosecuting it. But it is said that plaintiif combined with the defendant to procure from the court a taxing of plaintiff, the latter’s bill at the full amount claimed, by approving same, and thus to furnish a basis for a claim against the State, which he now declares to be excessive.

We do not find in the petition any allegation that the bill of ■defendant for the total value of his services is excessive. The plaintiff simply declares that it was excessive as a legal claim against Mm, because he shows that a large portion thereof was for services in furnishing copies of the testimony daily to each member of this court and to counsel on both sides, for which work he could not be held, though it might form an equitable charge against the State as done to advance the convenience of her officers.

Moreover, it does not appear on the petition that the approval of defendant’s bill by plaintiff had any connection with, or was any part of the consideration of, the understandings between the parties. The remission alleged occurred long before tlie bill was approved, and was itself a sufficient and complete defence, if proved.

If plaintiff lent his sanction to a bill excessive even as against the State, no ill motive can be inferred, since the bill was also approved by the distinguished counsel for the petitioners.

Finally, considering that, in the present attitude of the case, the allegations of the petition stand as admitted to be true for the purposes of the exception, we doubt whether it lies in defendant’s month to urge sdch an objection, even if it were founded. He is himself invoking the process of this court to aid him in enforcing a judgment which, under the suggestion of this exception, must be treated as having been obtained by fraud and for an immoral and unlawful purpose, to which be was himself a party. Thus where a party sues to enforce an illegal or immoral contract, the rule, nemo allegan s suam turpitudinem audiendus est, finds a well recognized exception and the party sued is permitted to set up the unlawful or immoral consideration, even though a party to it, in order to save the court from the necessity of enforcing such a tainted contract. Hertz vs. Hilder, 10 An. 199: Gil vs. Williams, 12 An. 219.

We see no reason why the same principle should not apply here.

We deem it proper to observe, in conclusion, that the several exceptions have been decided, as they were submitted, on the face of the papers. As some of them involve matters in pais, on which the evidence may contradict the judicial allegations, our decision is with - out prejudice to the right of defendant to renew such defences on the merits.

It is therefore adjudged and decreed that the exceptions be over.ruled at defendant’s cost.


source: Caselaw Access Project

license: Public Domain

text:
    No 10,547.
    No. 10,548.
    Succession of William Ball, Heirs of Immer Ball, vs. Mrs. J. M. Ball and C. W. Ball, Executors. Succession of William Ball, Mrs. Sarah I. Ball et al. vs. Mrs. Julia M. Ball et al.
    1. It is too late, after a case lias been taken up, the intervention road without objection as part of the pleadings, and the evidence heard and concluded, for a party to object to having the intervention passed upon for want of issue joined thereon*,

      •2. I n an action by forced heirs for reduction oí donations, the disposable quantum is calculated exclusively upon the conditions existing at the death of the de cujus.

      ;i. Ii the debts duo at the death exceed the value of the property found in the succession, there can be no disposable portion for the satisfaction of legacies; and no subsequent changes however operated, whether by increment in value of the property, or by extinguishment of debts, can affect the case.
    4. The demand for reduction can bo urged by forced heirs alone; executors, as such, can not be heard to champion their rights.

      5. All the matters at issue being dependent on the determination of the demand for reduction by the forced heirs, they will not be passed on until after such determination.
    APPEAL from the Fifteenth District Court, Parish of West Feliciana. Semple, J.

      R. G. WieMiffe and S. MeC. Lawrason for the Executors, Appellants.

      W. W. Leake for the Opponents, Appellees.
   The opinion of the court was delivered by

Fenner, J.

These cases were argued and submitted together, and although not expressly consolidated, the view we take of them renders it proper to include them in one decision.

Dr. William Ball died in 1886, leaving a wife and six children. His estate was entirely community, and his children were his forced heirs. He left a will and appointed his wife and his son, Chas. W. Ball, as executors, who qualified and administered as such, and who filed a first provisional account in 1881, which was duly homologated.

The will contained a legacy in favor of the decedent’s brother, Immer W. Ball, which, however, the executor considered and treated as of none effect, and no claimjwas advanced in support thereof by the legatee during his lifetime. In the meanwhile the executors seem to have dealt with the estate as the property of the widow and children, and so administered and cultivated it, settling with creditors, and paying off all debts under compromises made with them.

In 1886 the heirs of Immer W. Ball for the first time appeared in court, asserting the legacy to their father and demanding that the executors should file a full account of their administration within a fixed delay, or in default thereof be condemned to pay to them the amount of said legacy. The executors resisted on the sole ground that, under the terms of the will, the legacy was not due and payable. Judgment went against the executors in the lower court and was affirmed by this court. Ball et al. vs. Executors, 40 An. 284.

On the filing of our decree in the lower court the executors forthwith filed a provisional account, which was opposed, on various grounds, by the legatees, and the judgment on that opposition, from which all parties appeal, is the matter involved in the Record No. 10,547.

After that judgment and pending the suspensive appeal therefrom, the legatees obtained an order commanding the executors to file a final account, which was done.

In that account they make a statement of assets and expenses, and propose to turn over the property and funds to the widow and heirs of the decedent, and add that the legatees are not placed on the account for the reason that to pay the legacy in favor of Dr. Immer W. Ball, or any part thereof, would infringe on the legitime of the heirs of Wm. Ball.”

The legatees filed an opposition to this account, in which they objected to numerous items and also demanded that their legacy should be placed on the account and paid.

On the day fixed for the trial of this opposition the forced heirs of William Ball filed an intervention, in which they join the executors-in praying for the homologation of their account, and for a judgment reducing the legacy in favor of Immer W. Ball to the disposable portion, which they aver is nil, because at the death of Wm. Ball his succession was insolvent.

Citation was waived and service accepted by opponents of the petition of intervention.

From a bill of exceptions signed by the judge it appears that when the case was taken up the intervention was read as part of the pleadings without objection, that the evidence was taken and closed, and that it was only when the case was about to be submitted that counsel for opponents objected to the court’s considering the intervention, for the reason that it had not been put at issue. The judge sustained this objection and rendered judgment ignoring the intervention.

The judgment is the subject of the .second appeal, now under consideration, No. 10,548.

We think the judge erred in declining to pass on the intervention under the circumstances of this case. The objection of opponents, however sound, if timely urged, came too late. A similar question has already been passed npon by this court in a decision from which we quote: “ On the trial of the cause, the plaintiff objected to the right of intervenor to have his intervention passed upon for want of an issue joined upon the same. We think this objection was ill taken. Art. 393 of the Code of Practice certainly contemplates an issue upon an intervention. * * * But plaintiff has chosen to go to trial without answering. His objection was only made after the evidence and argument were closed. There is no suggestion that he was ignorant, before going to trial, of the existence of this intervention in the record.” McCoy vs. Sanson, 13 An. 456.

In this intervention the forced heirs of William Ball have exercised the right guaranteed to them bylaw of protecting their legitime from infringement, by demanding the reduction, within the disposable quantum of their ancestor’s estate, of the legacies contained in his last will.

It is elementary that, in calculating the disposable quantum, reference is had exclusively to the conditions existing at the moment of the ancestor's death, to the value of the property at that time and to the debts then due by him. If the amount of the debts due at the death exceeds the value of the property found in his estate, there can be no disposable left for the satisfaction of legacies. No subsequent changes in the conditions, however operated, whether by increment in value of the property or by prescription or other ex-tinguishment of debts, can affect the" case.

All the commentators agree on this. See Baudry, La üantiniére, Mourlon and Marcadé on Arts. 920 ef sequentes of the French Code, corresponding to Arts. 1502 et seq. of our Code.

If the estate of William Ball was insolvent at the moment of his death, his forced heirs have the right to require a reduction of the legacy in favor of Immer W. Ball to its full extent, and the opponents would be left with no interest in or claim against the estate, and with no standing in court to meddle in its administration.

Our judgment in 40th An., sustaining the validity of their legacy under the terms of the will, has no bearing as res adjudicata upon the present issue of reduction, which concedes the validity of the legacy, but denies its right to satisfaction out of the estate because «exceeding the disposable portion.

The right of reduction appertains exclusively to the forced heirs, •and the action therefor can be brought only by them or their heirs or assigns. It did not lie in the mouth of the executors, as such, to raise such questions. As to them the legacy was valid until attacked and reduced by the forced heirs. Even if we should consider the 'fact that one of the executors was himself a forced heir, as' supporting his claim of reduction urged in his executor’s account, it could only operate to the extent of his own interest.

Therefore the demand for reduction can only be considered under the intervention. We find evidence in the record going to sustain the demand of intervenors by showing the insolvency of Wm. Ball’s estate at the time of his death, but as the opponents offered no evidence on this issue, and as they, perhaps, relied on their objection to the intervention which was sustained by the judge a quo, we do not feel inclined to shut them off from the opportunity of adducing evi - dence on this point, if they have any.

We shall, therefore, remand the case for the purpose of a new trial upon the intervention.

It is apparent that this issue involves the whole rights of oppo - nents in both the appeals before us.

If the demand of the intervening forced heirs shall be sustained, the opponents pass out of the case.

The questions of law and fact involved in the accounts are intricate and difficult, resulting from the peculiar circumstances of the ease, inducing an irregularity of administration and giving rise to conflicting considerations of equity and law.

We deem it best to reverse both judgments and to remand the cases to be retried together upon all the issues,

It is therefore ordered and decreed that the judgments in both cases be avoided and reversed, and that they be remanded to the lower court for retrial, according to the views herein expressed.

Roché, J., concurs in the decree.


author: Watkins, J.

text:
    No. 10,452.
    The State ex rel. John McEnery vs. Francis T. Nicholls, Governor, et al.
    1. .V mandamus proceeding against the Register o£ tlio State Land Office to coerce Ins performance of duties purely ministerial, is not a suit against tlie State.
    2. Mandamus will go to the Auditor, Treasurer or Register of tlie Land Office of the State in appropriate cases.
    .3. It is the duty of the Governor, and not of the Register, to sign patents l'or State lands: hut tlie latter is fully authorized under Act 23 of 1880 and other laws of the State to prepare all the papers, data, etc., prerequisite and preparatory to the issuance of patents, and it is made his special ministerial duty to so prepare them for the Governor’s signature, and upon the faith of his certificate it is the duty of the Governor to act, and sign same when duly presented to him.
    -J. The State, through the Register of the Land Oftiee and the Governor, was fully empowered l>y Congress, and legislative acts in pursuance thereof, to sell school indemnity lands, convey fee simple titles to purchasers thereof, and to dedicate, tlie proceeds to the inhabitants of townships entitled thereto, for the benefit of public schools.
    APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      John McEnery, in propria persona.

      Joseph A. Breaux, Superintendent of Public Education, and Walter H. Rogers, Attorney General, for Defendants and Appellants.
   The opinion of the court was delivered by

Watkins, J.

This is a proceeding by mandamus to compel the Governor, and the Register of the State Land Office, to execute and deliver to the relator patents for certain lands; and to require the former to transfer and deliver to him a certain swamp land indemnity certificate.

In the court below there was judgment making the mandamus peremptory as to the Register, commanding him to prepare and sign patents in favor of the relator, for lands recovered by him as per his contract with the State of Louisiana; which lands were divided by lot by said Register, on the 4th and 5th of February, 1889; but no disposition was made of the demand for a mandamus to the Governor, aside from the general statement that the law and evidence were in favor of the relator, “ entitling him to the decree prayed for.”

From that decree the respondents have appealed, and, in this, court, the relator has filed an answer, praying that the judgment against the Register be affirmed; but, in so far as relief by mandamus against the Governor is concerned, the case remains in statu quo, and an affirmance of the judgment is all he could require.

I.

The claim of the relator is, that by the terms of Act 23 of 1880 tho-Governor was authorized to employ counsel to assert the rights of the State to lands donated to the State by the Federal government, or to recover the value of said lands in money or scrip; and that on the 20th of March, 1880, the Governor did make and enter into a contract with him for the purposes enumerated in and contemplated by that act. That, in pursuance of and conformably to said act and contract, he recovered for the State of Louisiana two indemnity swamp land certificates from the general government, covering over 1200 acres of land; and, also, recovered certain internal improvement and school indemnity lands, which had been granted the State under various acts of Congress, a schedule of which is appended to his petition.

That all of said lands were, by the Register, divided by lot, into two parcels, one of which was allotted to him and the other to the State, and of the whole he caused an act of partition, in due form, to be prepared — the internal improvement and school indemnity lands being therein separately mentioned — showing the quantity and description of those lands to which he was entitled, as well as those allotted to the State.

That he is entitled to the share of said lands thus allotted to him on the Register’s projet of partition, and to one of the two indemnity swamp land certificates, they having been issued by the land officers-of the Federal government in two equal portions, the patents for the whole of said lands and said certificates being in the custody and control of the Register of the State Land Office, and notwithstanding due demand had been made upon the Governor to that effect, he has declined to sign the necessary patents, or to transfer to him either of said indemnity swamp land certificates; and said refusal of the Governor to sign and deliver said patents as evidences of title, and to-transfer and deliver said certificate, and the declination and refusal on the part of the Register to perform his duties in the premises, are contrary to law, and if persisted in, will result in great loss and injury to him, and that mandamus affords the only remedy and relief.

The defences assigned for the Governor — who makes appearance through the Attorney General — are as follows, viz:

That, as the chief of the executive department of the State government, he “gives the court to know and be informed that he is. ready and prepared to do and perform any and all duties which devolve upon him under the Constitution and laws of the State, when the facts of any given case justify; but that, in respect to the matters and things set forth in the relator’s petition, no such duty devolves upon him, and he has declined and declines to act in the premises, as matters now stand.”

That the Register questions “ his right and authority to take action in the premises, and because he had also been informed that the lands mentioned were lands held in trust by the State for school purposes, and could not be diverted by the Legislature, or the State, directly or indirectly, to any person, and especially, as was attempted to be done ” in this case; that he approves of the opinion expressed' by the Register, and of the final action of “the Register in refusing to sign said patents, and he declares that his prior action was unwarranted.”

That' the Register had, and has, no legal authority or capacity under Act 28 of 1880 to pass upon the contract entered into between his predecessor in office and the relator, and decide whether said contract was justified by said statute or was within its terms, and a legal contract; and had neither authority to examine into the services of the relator and determine whether they were within the law and the contract, nor to approve same and make a partition, or other disposition, of the lands recovered by him thereunder.

That the Register is utterly' without authority, either to audit said matters or stand in judgment, in respect to same, for the State.

That he — the Governor — “ is without any authority or capacity to audit the said claim, or to make any disposition of the scrip or land in favor of the relator, or any one else — and he declines to do so — or to stand in judgment for the State, and he declines to do so.

‘ ‘ That this whole matter will require additional legislation, in that, until.such additional legislation, and some remedial and enabling act (is passed), no action whatever can be had by either the executive or judicial department” under said act and contract, “for the purpose of ascertaining and fixing the rights and obligations of the parties.”

“ That the only authority given to the Governor, under Act 23 of 1880, extended to making a contract for the purposes mentioned, and not to auditing any claims or rights under it, or standing in judgment for the State under it.” (Italics ours.)

That he in no manner recognizes or admits that the claims and pretensions- of the relator are just, or well-founded, either in law or in fact; and he deems it his duty, as head of the executive department, to inform the court, and bring to its knowledge the matters and things herein set forth, to the end that the State suffer no injury,” etc.

The answer of the Register is of like import, and it adopts the averments of that of the Governor as his own.

This extended statement of the demands of the relator and of the defences of the respondents was deemed essential .to the perfect -elucidation of the questions involved.

II.

The substantia] facts adduced on the trial are set out in certain admissions of record and the parol testimony of relator. They are as follows:

1. The admissions are to the effect “that the lands described in the advertisement embrace the school indemnity and the internal improvement lands recovered, and the lands allotted to the relator are correctly described in the petition.

“ That the swamp land indemnity certificates described in the petition, on which the relator claims a fee under his contract, were recovered for the State in two certificates of equal amount, and that the transfer and delivery to him in negotiable form, by the Governor, of one of these certificates, will be payment for said recovery if this action is warranted.”

“That the said school indemnity and internal improvement lands were received by the relator, acting under his contract with Governor Wiltz.

“That the Register of the State Land Office divided, and,-on February 4 and 5, 1889, allotted to the relator, as his fee for recovery of ame, the lands so claimed and described in his petition.”

“That frequent demands for patents for the lands, and the transfer of the scrip accruing to the relator have been'made on the Governor and the Register, and (such demands) have been refused.”

2. The testimony of the relator as a witness is to the effect that,, by the terms of Act 85 of 1848, the State assumed control of the school lands granted to the State by certain acts of Congress, by imposing upon the Register-of the State Land Office, the duty of adjusting the grant, and by authorizing him to sell school land warrants when deficiencies were ascertained.

Under ■ the provisions of that act, and prior to 1861, about 115,000 acres of such warrants had been sold, and it was generally conceded that the State could make no further claim under said act of Congress, dated May 20, 1826.

“ Such was the supposed condition of the school grant at the date of the passage of Act 28 of 1880.”

“In pursuance of the contract thereunder, relator entered upon an examination of the records with the view of determining the status of the grant, but they were found so defective that it became necessary to form tabulated statements of all the warrants issued by the State.”

The records of the Land Office of the United States were then examined.

“In performing this work, lists were found on the files, then not recorded in the State Land Office, and plats were found which were not found in the Surveyor General’s office, and viceversa. It required much time and correspondence to perfect the list referred to owing to the obstacles encountered.

“Application was next made to the Register of the State Land Office to issue warrants for deficiencies, but he refused for the reason that he was not advised as to whether such townships were entitled to indemnity.”

The next step taken was to ascertain where the best government lands, subject to location by the State, were situated, and this was done at great labor and expense to the relator, and lists were made and forwarded to the General Land Office for instructions, which were, after considerable delay, approved and returned to the local Land Office of the United States, with instructions to receive the same.

“So many difficulties were encountered in the various steps of the adjustment * * * that the relator was obliged to secure the aid of experts, both here and in Washington, at great expense.”

Finally, it is stated that prior recoveries were obtained by him during the administration! of Governors Wiltz and McEnery, and the Register of the State Land Office made partitions between the State and himself, just as the Register proposed in this instance.

The act of the Legislature under which the relator’s contract was made, as well as the contract, were put in evidence. No evidence was introduced on the part of the respondents.

The following is an exact copy of Act 23 of 1880, viz:

AN ACT.

‘‘ Authorizing the Governor of the State of Louisiana to employ counsel to assert the rights of the State to lands donated to the State by the Federal government, or to recover the value of said lands in money or scrip.

“Section 1. Be it enacted, etc., that the Governor of the State be and he is hereby authorized to take the necessary steps to institute proceedings, to employ counsel and to make necessary agreements to recover for the State the lands situated in the State of Louisiana, and donated by several acts of Congress to the State for divers purposes ; some of which have been illegally disposed of by the Federal government, and other portions, though listed to the State, have been improperly suspended, or rejected by the Federal government, and the approval to the State refused, or to recover the value of said lands, in money or government scrip; provided that the State shall incur no cost or expense in the prosecution of said claim, other than the allowance to be made by the Governor out of the land’s money, or scrip, that maybe recovered. The Governor is specially authorized to make all agreements and contracts to carry out the provisions of this act.”

This act was signed and approved on the 8th of March, 1880, and duly promulgated thereafter.

On the 20th of March following, Louis A. Wiltz, the then Governor of the State, entered into a written contract with the relator, in which the following, among other stipulations, are found, viz:

First: ‘ That the relator promises and agrees to employ his diligent and best efforts to recover for the State, all lands donated to her by the general government as swamp lands, and which have been improperly suspended, or rejected by the United States government; and all lands to which the State had valid claims, and which have been sold or otherwise disposed oí by the United States, to the prejudice of the State, or to recover the value of lands in money or scrip, to be paid, or issued by the United States, in lieu of lands sold, or otherwise disposed of by the government of the United States, to which the State had valid claims, including therein the claims of the State upon the general .government for lands, or their value, for school purposes; for the amounts in money due the State by virtue of the Acts of Congress in relation to military bounty land warrants, or their location, and also for internal improvement purposes.”

Second: “The State of Louisiana on her part agrees to pay John McBnery fifty per centum of the lands, money or scrip recovered, to be paid as provided in said Act 23.

“ Where lands in kind are recovered, the compensation, as aforesaid, of the said McEnery shall be represented in scrip or certificates, to be issued by the Register of the Land Office of the State, and locatable upon any lands owned by the State.”

It was thought to be most convenient and correct to incorporate the statute, and the contract made in pursuance of it, with the statement of facts, and deal with them as parts of the evidence, as they were introduced as such and are the foundation of the relator’s rights.

III.

Inasmuch as the principal question discussed in the Attorney General’s brief is that the school indemnity lands, for a portion of which the relator makes claim, are not the property of the State, but only held in trust by the State for school purposes, and for that reason same can not be transferred to him, and the Legislature was without power to authorize the sale or partition of them as proposed; we will examine that proposition first, as it underlies the statute in pursuance of which relator’s contract was made, and, if sustained, will invalidate much the greater part of his demands.

The syllabus of his brief presents his theory in very concise form and we quote it in full, viz:

“ Act No. 23 of 1880 applies only to recovery of State lands. State lands are those in which the title of the State is absolute.

“Lands donated to the State for school purposes are not State lands but lands held in trust by the State.

“ Lands donated to townships are for the benefit of the particular township and the Legislature can not divert, nor authorize the Gov-^ ernor to partition them even under a contract for their recovery.

“ If such authority existed in the Legislature, the costs and commission for the recovery of school lands should be equitably divided among all the townships to the extent of the benefits secured.”

His further contention is that the terms of the contract, in so far as they appertain to school lands, are ultra vires, and not covered by or contemplated in the statute and are therefore void.

Relator’s answer to this proposition is that the lands in question, a portion of which he claims, are not sections sixteen in place, but are lands granted by the United States government to the State as indemnity for the benefit of the inhabitants of the township where sections sixteen are wanting or deficient for any cause; and that in recovering said lands from the United States, his fees are charged in pursuance of the statute and his contract upon them as a whole.

That the lands recovered are not sixteenth sections, but those which have been selected and located Without any reference to sixteenth sections, and which were granted in lieu of those to which certain townships were entitled under acts of Congress malting donations, and not secured to, or received by them. The recovered lands do not belong to certain townships, eo nomine, but to the State — in trust for school purposes, if you will — and must, ultimately, be sold by the State, so that the proceeds thereof may be placed to the credit of the people of the respective townships entitled to participate therein. Those lands were surrendered to the State by the land department of the general government, as a matter of equity, in order to carry out in good faith the provisions of the donation which had not become entirely effectual, because of conflicting or prior entries of some portions of the area donated.

An examination of the Register’s projet of partition discloses that there is not a single sixteenth section contained in it; and the testimony otherwise shows that the relator’s theory is true. The lands recovered are not school lands, but, as described, indemnity lands, destined to school purposes, the legal title to which is in the State, charged, however, by the terms of the contract and the statute under which they were recovered, with the compensation fixed in behalf of the relator.

The act of 1880 is in keeping with the general law, State and Federal, on the subject.

Sec. 2951 of the Revised Statutes declares that:

‘ ‘ The Register of the State Land Office is required to ascertain in what townships in this State there are no reservations of school sections by reason of conflicting claims, or from any other cause, or when the reservation is less than contemplated by law; and in such cases it is made his duty, under the superintendence of the Governor, to apply for and, as soon as possible, obtain a location of any land or parts of land in lieu thereof.”

Sec. 2592 provides that:

“ When such locations can not be made, if deemed more advantageous to the State, the Register, with the assent of the Federal government, is authorized to issue scrip for such lands, which scrip shall not be sold for a less amount than $1.25 per acre.”

These sections are in the exact language of Secs. 8 and 9 of Act 316 of 1855, “regulating the sale of internal improvement and school lands.”

From these provisions it clearly appears that it was, at the time of the passage of that act, within the contemplation of the Legislature, that there were many townships wherein there were deficiencies in school reservations, and hence a special mandate was delegated to the Register of the Land Office, “under the superintendence of the Governor,” in the premises.

While it is true that the act of 1880 does not, in terms, mention school lands or school indemnity lands, yet we are of opinion that those employed, viz, “lands situated in the State of Louisiana, and donated by several acts of Congress to the State for divers purposes, some of which have been illegally disposed of by the Federal government, and other portions, though listed to the State, have been improperly suspended or rejected by the Federal government, and the approval to the State refused, etc.,” are equally distinct and efficacious, when considered in the light of the antecedent statutes on the same subject. And when taken in the light of history, and the evidence in the record, the principal object in view was, evidently, the recovery of those identical lands, for it is apparent that notwithstanding the requirements of the act of 1855, no recoveries of consequence had been effectuated, and hence the necessity for the State to secure the assistance which was obtained.

Iii addition to these considerations, the laws of Congress under which the donations were made, the acts of May 20, 1826, and February 26, 1859, especially provided for such indemnity, and are the foundation of the State laws referred to. Those acts were, by the revision of the statutes, merged into Secs. 2275 and 2276 of the United States Revised Statutes, in December, 1873, which repealed all antecedent laws on the same subject matter.

We quote Sec. 2275. It is as follows, viz:

“Where settlements, with a view to pre-emption, have been made before the survey of the lands in the field, which are found to have been made on sections sixteen or thirty-six, those sections shall be subject to the pre-emption claim of such settler; and if they, or either of them, have been or shall be reserved or pledged for the use ■of schools or colleges in the State or Territory in which the lands lie, other lands of like quantity are appropriated in lieu of such as may be patented by pre-emptors; and other lands are also appropriated to compensate deficiencies for school purposes, where sections sixteen or .thirty-six are fractional izn quantity, or when one or both are wanting by reason of the township being fractional, or from any natural cause whatever.'1’ (Our italics.)

The State assumed control of school lands donated under the acts ■of Congress, and, on the 20th of December, 1848, the General Assembly enacted a statute “.to secure the location of school lands.” To that law the act of 1855 is a supplement, and it fixed the price at which school lands should be sold, the authority for their sale having-been specially delegated to the State, by the Act of Congress of February 15th, 1843. See Statutes at large, Yol. 5, p. 600.

The question as to legal destination of the title to school indemnity lands has been determined by this court, in several well-considered opinions, of recent date.

In Board of School Directors of Concordia vs. Ober, 32 A. 418, our predecessors disposed of the whole question in one short paragraph. They say:

“ These lands were donated by Congress to this State for public school purposes. By act of February 15, 1843, the Legislature was authorized by Congress to provide for the sale, and the conveyance of a fee simple title to the purchaser; and the manner of sale and disposition of proceeds was prescribed by our legislative acts of 1855. The State is a trustee of the lands, or the proceeds of their tale, for the use of the inhabitants of the townships wherein they are located.” (Italics ours.) This statement is consonant with that announced by us in Bees vs. Louviere, 87 An. 738, in which we held:

<{ It is clear that, when the State sold the indemnity warrant, she parted with what right, title and interest she had, or could have had, in and to any part of the public domain to which she would have been entitled by the location of the warrant; and that, when the location was effected, approved, returned, and acted upon by the delivery of the patent by the Governor, the divestiture was complete.” (Italics ours.)

It was so held in effect, in McCastle vs. Chancy, 28 An. 720; in Bradley vs. Case, 4 Illinois 604 (interpreting similar statutes) ; and in Cooper vs. Roberts, 18 Howard 181. In this last case, the Supreme Court expressed the opinion that “ the trusts created by these compacts relate to a subject certainly of unusual interest (and) of municipal concern, over which the power of the State is plenary and exclusive.”

The foregoing is deemed perfectly conclusive as to the legal title of such lands being in the State, with the right of sale, and of making perfect and complete titles to purchasers from her, and the right of dedicating the proceeds of sale to the inhabitants of such townships as may be entitled thereto.

On account of the great public importance of the question involved and the stress laid upon it in the argument of the Attorney General, we have dealt with it as res nova and examined it most carefully and thoroughly, and our conclusion is that the statute is broad enough and sufficiently ample in terms to authorize the contract in this respect between the relator and the Governor; that the laws of Congress, and the prior statutes of the State authorized the recovery and selection of the indemnity school lands; that the right existed in, and the duty was imposed upon the State through appropriate legislative action, to make sale of them and dedicate the proceeds to school purposes; and that the authority in the Legislature to confer upon the Governor the power to convey a part of said lands, when recovered, to such person as should aid in their restoration to the State, is likewise ample.

In so far as the right of the relator to a part of the internal improvement lands recovered and to one of the two indemnity swamp land certificates are concerned, there is nothing said by the Attorney General, and it must turn upon the theory that the Governor is-wholly without authority in the premises to stand in judgment for the State, or at least until additional legislative action is had in the premises.

IV.

Recurring to the answers of the respondents, we observe that seeming stress is laid by the Attorney General upon the alleged want of authority on the part of the Governor, as well as of the Register of the State Land Office, to stand in judgment for the State. This, we consider, a misconception of the issues involved in this case. In no proper sense is the State a party to this suit, and no judgment or relief is asked for against her. For, if such were the case, this proceeding would have to go out of court immediately, for it is a familiar principle “that the sovereign can not be sued, in his own courts, without his consent.” State vs. Burke, 34 An. 548; State ex rel. Attorney General vs. Lazarus, 40 An. 858; Louisiana vs. Jumel, 107 U. S. 728.

And no such consent is averred in this case. In our conception, this is a suit, or proceeding by way of the extraordinary remedy of mandamus, taken on the part of a private citizen against the chief executive officer of the State government, and against one of the subordinate officers of that department, for the purpose of obtaining specific relief by coercing them to carry out and complete a contract in the ordinary form, which he had entered into with the predecessor of the respondent Governor; upon the completion and fulfilment of which said citizen, as relator, has large and valuable interests depending ; and in the performance of which a specific duty was imposed upon the Governor by a special act of the Legislature; and wherein he was wholly without discretion.

The denial of right on the part of the Governor and on the part of the Register rests upon like grounds, and involve like principles of law, because they are both executive officers of the State government ; and, while there is no specific denial of the jurisdiction of this court to pass upon and decide the question thus raised, yet there are averments to the (effect that the duties imposed upon them, if any, come clearly within the definition of executive acts which, so far as they devolve upon the Governor, are within the exercise of his discretion, and therefore their performance can not be coerced by mandamus.

Preliminary to the discussion of this question, we will say that we regard the act in question as sufficiently complete, and concise, to cover the case in hand. We can not discover any necessity for additional legislationin order to the complete execution of the relator’s contract; at least so far as the Register is concerned, and, if indeed the same is ultra vires on the part of the Legislature — though we do not think it is — from what source could the vires be obtained, if not from the Congress? In so far as the performance on the part of the relator, of all the requisites antecedent, and necessary, to entitle him to compensation under his contract, is concerned, there is cpmplete proof in the record, and it consists in an admission “that the' lands described in the advertisement .embrace the school indemnity lands and the internal improvement lands recovered.”

Those lands were doubtless patented to the State, and the Register of the State Land Office is in possession of them. After their surrender into the power and possession of the Register, no further or other duty was imposed upon the Register than merely to partition or allot the recovered lands, as he proposed to do; and no other or further duty devolved upon the Governor than that of signing and delivering patents to the relator for the portion of said lands to which he was entitled, as he is requested to do. In their answers there is no charge of illegality in relator’s contract, or want of due compliance on his part, with all of its terms and requirements. Neither is there any charge of unconstitutionality of the law under which it was made. Therefore, neither of the respondents are called upon to examine and pass upon this contract in any way, or in any way to pass upon the law. Neither of them are requested, or charged with the duty of examining into the services of the relator, in the premises; or, if determining whether they are within tlie contract and the law, and of approving the same. The law directed the Governor to do a certain specific thing, viz: “ to take the necessary steps to institute proceedings, to employ counsel, and to make the necessary agreements to recover for the State certain lands.” To this end he was authorized to make an “allowance * * * out of the lands, money, or scrip * * recovered,” to the attorney employed. In the contract the allowance was fixed at “fifty per centum of the lands, money, or scrip recovered.”

The contract stipulates that this allowance is to be paid as provided in Act 23 of .1880, and it provides that the Governor is specially authorized to make all agreements and contracts necessary to carry out its provisions.

While the question of mandamus going to the Governor has been practically eliminated from the case, the relator’s right to the writ, as against the Register, is still insisted upon; and as these are duties which are specifically imposed upon him by law, in the premises, we must ascertain whether or not they are ministerial.

Neither the general provisions of law, nor those of the particular statute in question, confer the power or make it the specific ministerial duty of the Register to sign patents to land. The law has imposed that duty on the Governor. R. S. 2920, 2983; Sec. 2, Act 316 of 1855.

We do not understand this to be a proceeding to enforce by mandamus an ordinary contractual obligation. For that purpose the writ would not lie. State ex rel. New Orleans vs. Carrollton Railroad Company, 37 An. 589. The rights which relator seeks to enforce flow out of Act 23 of 1880, by the terms of which the Governor was selected as the mandatory of Legislature to carry its will into effect.

Without legislative authority he would have been absolutely powerless to enter into any contract in the premises with relator or with any one else. In stipulating with relator the Governor was merely the agent of the General Assembly as the contracting party, and in whose stead it could with equal propriety have selected any other person. Hence the relief herein prayed for is simply the execution of the legislative will, and for which — in respect to the Register of the State Land Office — mandamus is an appropriate remedy. For it is elementary that he is charged with the performance of all duties which precede and are prerequisite to the sale of public lands and the issuance of patents therefor.

The general law of the State imposes on the Register the specific duty of ascertaining in which particular townships there were no reservations, or in which there were deficiencies, and “under the superintendence of the Governor ” to apply for and secure the location of other lands in their stead. R. S., Sec. 2951.

Act 23 of 1880 charges that officer with the duty of issuing scrip, or certificates, to such person as may be employed by the Governor in pursuance of its provisions, for the amount of his compensation when lands are recovered in kind. Inasmuch as the relator has obtained from the land department of the general government patents to the State for the whole of the lands in question, and under the very letter of his contract he is entitled to half, no argument is necessary to show that it was the Register’s duty — plain and ministerial —to prepare all the data and perform all the acts incident and prerequisite to the issuance of patents therefor, as the evidence of relator’s right is perfect and complete; and, to that end and effect, his-right to a mandamus is also complete.

Whatever contrariety of opinion may have, at onetime, existed on the subject, it is now a settled principle that a peremptory mandamus will go to State officers, such as Auditor, Treasurer, and Register of State Land Office, for the purpose of coercing performance of purely ministerial duties devolving on such officers by law.

In State ex rel. Collins vs. Jumel, Auditor, 30 An. 863, our predecessor said on this subject:

“ The State is sovereign, and can not be sued by her citizens, in her own courts, without her permission, bnt a civil proceeding, by which one officer of the State seeks to compel another officer of the same State to perform a ministerial duty, is not, in the proper sense of the words, a suit against the State.

“Nothing is more common than for a party who has a claim against the State, whether for salary as an officer, or for money due on other accounts, to have his right to payment adjudicated through and by means of a mandamus against the auditing officer. It is recognized by us as a legitimate mode of ascertaining what are the rights of persons who have or who prefer claims against the State.”

In State ex rel. Ecuyer vs. Burke, Treasurer, 33 An. 969, we said that “ while fully recognizing the independence and all the rights-of coordinate branches of the government, it is only necessary to say that it is the province of the judiciary, whenever the question is properly brought before it in judicial proceedings, to decide whether duties sought to be enforced at the hands of officers are or are not ministerial, and that it is of the essence of the judicial power to adjudge such questions,” etc.

In keeping with this recognized principle w.e made mandamus peremptory in State ex rel. Campbell vs. Steele, Auditor, 37 An. 353.

Our predecessors did likewise in State ex rel. Mentz vs. Clinton, Auditor, 28 An. 47; and in State ex rel. New Orleans Republican Printing Company vs. Clinton, Auditor, 28 An. 72.

These decisions are in line with those pronounced in Marbury vs. Madison, 1 Cranch 137, Kendall vs. United States, 12 Peters 608, and Board of Liquidation vs. McComb, 92 U. S. 541. Indeed, the Attorney General has made no question as to our authority, in this respect.

The District Judge entertained this view and made the mandamus peremptory as to the Register, and we think correctly.

Judgment affirmed.

Mr. Justice MeEnery recuses himself on account of relationship to the relator.


author: "Watkins, J.

text:
    No. 10,511.
    The State of Louisiana vs. Oneil Dorsey.
    An application lor a new trial based on newly discovered evidence is properly overruled on tlie assignment oí the trial judge, that tlio witnesses relied upon were summoned by the accused to attend the trial and were personally present during the, trial and were, not interrogated by him.
    APPEAL from the Twelfth District Oourt, Parish of Avos^elles. Coco, J.

      Walter H. Rogers, Attorney General, and James Andrews, District Attorney, for "the State, Appellee.

      .Dueoté <& Cappel for Defendant and Appellant.
   'The opinion of the court was delivered by

"Watkins, J.

The defendant appeals from a judgment convicting him of larceny and sentencing him to two years at hard labor, relying on a motion for new trial and one in arrest of judgment.

Both appear to have been taken pro forma and without merit.

The motion for a new trial is grounded on an alleged discovery of additional and important testimony by which his ownership of the property charged to have been stolen could be proved. The judge assigns in his reasons for overruling the motion that the witnesses by whom this new evidence is expected to be obtained, were duly summoned by the defendant, and were in attendance upon the court ■during the progress of the trial and were not interrogated.

It passes comprehension how his counsel could have failed to have ascertained that they possessed such information on the most vital question in the case; and it is even more incomprehensible to us that we should be expected to accept the bare statement of the accused as to his exercise of due diligence to obtain this testimony under* these circumstances.

The grounds assigned for the arrest of judgment are: (1) that the verdict of the jury was contrary to law and evidence; and (2) that the judge’s refusal to grant a new trial was contrary to law.

This motion is frivolous.

Judgment affirmed.


author: McEnery, J.

text:
    No. 10,563.
    The State ex rel. P. Breazeale et al. vs. Wyoming Frank et als.
    The Supreme Court, when the amount involved is less that $2000, has jurisdiction ' only of tax suits when the constitutionality or legality of the tax is involved.
    In the absence in the pleadings of any suggestion as to the legality or constitutionality of the tax, the appeal will be dismissed.
    A PPEAL from the Eleventh District Court for the Parish of Orleans. Jt\ Pierson, J.

      Phanor Breazeale for Plaintiff and Appellee.

      Jack & Dismukes for Defendants and Appellants.
   The opinion of the court was delivered by

McEnery, J.

This is a suit to enforce the payment of licenses alleged to be due by defendants for carrying on the business of traveling show, dentistry, manufacturer, merchant and hawker, aggregating for both State and parish license the sum of $261.75.

Defendants answered that “they constitute a firm and carry on business as a hawker, in the capacity of which they are liable to the license of hawker, in that capacity for which they have paid and they owe no other.”

There is no issue suggested by the pleadings in any way involving the legality or constitutionality of the tax. There is only a question of fact at issue, whether or not the defendants carry on the business for which a license is demanded.

It is not claimed that the license of hawker covers the other occupations and authorizes the defendants to pursue them.

The amount involved is less than $2000, and this court is therefore without jurisdiction.

Art. 81 of the Constitution as amended..

We will therefore exproprio motu dismiss the appeal. 88 An. 704; State ex rel. Buneaudroy, recently decided.

It is therefore ordered that the appeal be dismissed.


author: MoEnery, J.

text:
    No. 10,553.
    Henry O’Hara and R. J. Whitney vs. The Independence Lumber and Improvement Company.
    Where tlie .sheriff's return on a citation does not conform to the requirements of law, the judgment will bo reversed and ease remanded. As the return may have, been defective and tlie service good, the ease should not be dismissed, but remanded for further proceedings, at costs of plaintiff in both courts.
    APPEAL from the Eighteenth District Court, Parish of Tangipahoa. Thompson, J.

      Reicl & Reid and S. D. Ellis for Plaintiffs and Appellees.

      E. N. Whittemore for Defendants and Appellants.\
   The opinion of the court was delivered by

MoEnery, J.

Plaintiffs, creditors of the defendant company, alleging its insolvency, the closing of its mills, and the absence from the State of all the officers of said company, prayed for the appointment cf a receiver of said company, the judicial sequestration of its property, and the liquidation and settlement of its affairs. The prayer was granted, a receiver appointed, the property sequestered, and order for its sales granted.

Barthold & Jennings, a commercial firm of St. Louis, Missouri, and stockholders in said company to the amount of 137 shares, of fifty dollars each, appeal from the judgment. They allege the proceedings were conducted and prosecuted to judgment with undue haste, and were ex parte, the defendant company having had no opportunity to appear and defend in said suit. The company was incorporated in February, 1888. In November, 1889, its mills ceased operation. On December 2, 1889, the suit of plaintiffs was filed. On December 6, 1889, the case, on the rule to appoint a receiver, was taken up, tried, and made absolute. On the same day the receiver was appointed, gave bond and qualified. On the 9th of December the receiver applied for and obtained an order of sale of the property of the defendant company. In these proceedings, conducted so speedily, the appellants allege that there was pn v»im return on the citation to the defendant company, and the j figment on the rule is therefore a nullity.

The return on the citation is as follows:

<l Received the original citation, together with certified copy of same, and a certified copy of plaintiff’s petition and order thereon, and served said certified copy of plaintiff’s petition and order on R. S. Manard, a person over the age of fourteen years, whom I found ■at the domicil of said Independent Lumber and Improvement Company, in charge of said company’s property and will, the general manager and president being absent from the domicil of said company at the time of service, and make this my return.

“ F. P. Mix, Sheriff.”

The return is radically defective in not stating whether the name of the party to whom the citation was handed was known to the Sheriff, or whether he learned it by interrogating that person, and omitting to state the day, month and .year when the process was served. C. P., Art. 201, Sec. 2; Arts. 202, 203.

The return does not show a domiciliary service and there was no proper foundation for a default.

There was not, however, an utter want of legal service, and as the party plaintiff could have had the return corrected in accordance with the facts of the service, the proper course to pursue is to remand the case. Adams & Co. vs. Basile, 35 An. 101.

It is therefore ordered and decreed that the judgment appealed from be reversed and that the case be remanded for further proceedings, at the costs of appellees.


author: Bermxjdbz, C. J.

text:
    No. 10,505.
    The State of Louisiana vs. Allen McCoy.
    An indictment for larceny must be tried in the parish in which the offence was either actually, or in contemplation of law, committed.
    An offender who has stolen property in one parish and carried it to another maybe-tried in either parish.
    The continuance of the asportation is a new caption.
    Quashing an indictment found in the parish to which the property was carried, on, the ground of want of jurisdiction, is error,
    APPEAL from the Thirteenth District Court, Parish of St. Landry.. Lewis, J.

      Walter H. Rogers, Attorney General, for the Appellant.

      E. R. Veazie and 8. Dupre for the Defendant and Appellee.
   The opinion of the court was delivered by

Bermxjdbz, C. J.

The State appealed from a judgment quashing the indictment for larceny herein and discharging the accused, the court considering that it had no jurisdiction to try the case.

The motion to quash charged that, if true it be that the larceny was committed in one parish and the property stolen taken to another contiguous one, the court of the latter parish had no jurisdiction and that the court of the former was the only one having-authority in the premises.

The law is clear on the subject. “ When the larceny has been committed in one county (animo furandi) the offender is, in the eye of the law, guilty of larceny in every county into which the goods may have been carried. The rule applies as well to property which is made the subject of larceny by statute as to property which is the subject of larceny by the common law.

When there is one continuing transaction, though there may be-several distinct asportations in law, yet the party may be indicted! for the final carrying away and all who concur are guilty though they were not privy to the first or intermediate act.

“ One aiding or abetting in a larceny in one county, and afterward concerned in the possession and disposal of the stolen property in another county, though the goods were removed to the latter county without his agency, may be convicted of larceny in the latter county.” 'Wharton Grim. Law, 7th ed. 928, etseq.

An indictment for larceny must be tried in the county in which ithe offence was either actually or in contemplation of law committed; but where goods stolen in one county are carried by the offender in •another' or others, he may be indicted in any of them, for the continuance of the asportation is a new caption. Roscoe Or. Ev. 644.

Besides, Sec. 988 of the R. S. distinctly provides that: Whenever ;any crime or misdemeanor shall be begun in one parish and ■completed in another, it may be dealt with, inquired of, tried, determined and punished in either of the parishes in the same manner as if it had been actually and wholly committed therein.

Quashing an indictment found in the parish to which the stolen property was carried, on the ground of want of jurisdiction, is error.

It is therefore ordered and decreed that the judgment of the lower •court be reversed, that the motion to quash be everruled, that the indictment be reinstated and that the case be remanded to the lower •court for further proceedings according to law.


author: Bermudez, O. J.

text:
    No. 10,555.
    The State of Louisiana vs. Filmore Butler et als.
    A motion in arrest of judgment by the principal convicted defendant, that the indictment charging his acquitted co-defendants as accessories is fatally defective, as they ought to have been prosecuted as principals, is quixotic and unworthy of notice.
    A hill of exception to the ruling of the District Judge of a motion for a new trial, on the ground that tlic verdict is contrary to law and evidence, will not ho considered on appeal.
    APPEAL from the Twenty-third District Court, Parish of Iberville. Talbot, J.

      Walter H. Rogers, Attoxmey General, and Alex. Hebw't, District Attorney, for the State, Appellee.
    * Charles A. Roxbw'ough for Defendants and Appellants.
   The opinion of the court was delivered by

Bermudez, O. J.

Butler was prosecuted for shooting with intent to murder; was convicted and sentenced to hard labor.

The other defendants, Oass and Scott, were indicted as accessories before the fact and acquitted.

Butler complained that the verdict .against him was contrary to-law and evidence, claiming a new trial.

He further complained that the indictment is fatally defective, in. this, that his co-defendants, prosecuted as accessories, should have-been indicted as principals, there being no accessories in law to the crime of shooting with intent to kill.

The District Judge overruled the motion for a new trial and that in arrest of judgment, and bills were reserved.

The bill to the denying of the motion for a new trial is not worth notice, and that to the overruling of the motion in arrest is altogether-unfounded.

What is it to Butler that his co-defendants, who were acquitted,, were or were not properly indicted? He can not be permitted to-champion any of the rights which they might have asserted and did not urge. They are satisfied with the result of their case. Butler’s, complaint that his co-defendants were improperly indicted is simply quixotic.

Judgment affirmed. •


author: Poem!, J.

text:
    No. 10,545.
    J. U. Payne, Jr., vs. S. L. James and Louis Trager.
    Unci or a contract o£ lease which binds the lessee to keep the property in good repairs, and to surrender it at the expiration o£ the lease in the same good order-in which he received it at the beginning o£ the lease, he has the option to make 1 lie required or necessary repairs at the end o£ the lease, and his lessor has no-cause o£ action £or damages for his failure to make repairs until the expiration of the lease.
    lienee, when the cause of action arises, the conditions on which the work was to ho done have ceased to exist, and in such a case the action for damages need not he preceded by a putting in default of the lessor. (C. C., Art. 1933; Exception I.)
    The, lessor who soils the leascdproperty during the continuance of the lease, with the express reservation of all his rights and claims as lessor, specially including the right to sue for damages caused to the property during the possession of the lessee, has a legal right of action for such damages after the expiration." of the loase, unaffected by the sale made in the meantime.

      APPEAL from the Thirteenth District Court, Parish of West Feliciana. Semple, J.

      S. MeO. Laiorason and Harry H. Hall for Plaintiff and Appelle:
    1. When a lessee contracts to deliver up a plantation In as good order and condition as when received, at the end of his lease, .ho has until the end of the last day of that lease to perform that obligation; and he would not bo in default, therefore, until the expiration of his lease.
    2. The putting in good order and condition was to bo performed during the lease; the lessee, therefore, has no right to burden the property with that detention after its delivery back to the. owner.
    3. Therefore, the thing to be “done by the contract was of sucha nature that it could only be * * * done within a certain time, which lilts elapsed; r * * the debtor would not b(j put in legal delay to entitle the creditor to damage.’’ (J. (\ 1933 (1927). Marcado, Vol. 4, Sec. 515, p. 416.
    4. No rule of law requires the party claiming damages for an injury sustained on account of the non-performance or defective performance of a contract for work and labor done, to first put his adversary in mora before he can be permitted to prove his damages. 37 An. 470; 9 La. 174; 14 An. 81; 84 An. 211.
    5. The delivery of the plantation, not conforming to the contract requirements, was not the delivery contemplated by the contract; was not a performance of the contract; was, on the contrary, an active violation of the contract. Vide Levy vs. Schwartz, 34 An. 214.
    6. The obligation contracted by the vendor to cancel a mortgage within a given time is a condition precedent to the collection of a note, and ho need not be put in default. Walker vs. Oueullu, 15 An. 689.
    7. When one sells a plantation which has been damaged and depreciated by the act of his lessee, the right of action against that lessee for the injury so done prior to the sale is not transferred to the vendee, unless by express subrogation, but remains in the vendor. Clark vs. Warner, 6 An. 408; 14 An. 119.
    8. Not only was there no subrogation to the vendee in the instant case, but the vendor expressly reserved the right to himself to claim these damages; and, as his petition avers, actually received as the price of his plantation $5000 less than he would have sold it for without this injury to which the lessee subjected it.

      W. W. Leake and R. G. Wiekliffe for Defendants and Appelles:
    An action for damages resulting from tlie passive violation of a commutative contract or one containing mutual stipulations and covenants between the contracting parties, must be preceded by putting the obligor in mora, as a condition thereto; it is the duty of the plaintiff to allege and prove it, else ho can not recover. It. C. C. 1932; 38 An. 781; 37 An. 839 ; 30 An. 112G.
   The opinion of the court was delivered by

Poem!, J.

Plaintiff claims damages in the sum of five thousand dollars for alleged violations of a contract of lease, in which the defendants, as lessees, had bound themselves to keep the leased premises in good order and repair during the continuance of the lease, and at the expiration thereof, to surrender the property in a like good order and repair, which they utterly failed to do.

Plaintiff appeals from a judgment which sustained an exception to the effect that his petition, which alleged a passive violation of a contract, contained no averment that the debtor had been put in default.

Plaintiff’s counsel argue with much force that the violation of the contract, disclosed by their allegations, is an active, and not a passive, violation; and that therefore a putting in mora was not an indispensable prerequisite to the demand in damages.

But for the purposes of the conclusions which we have reached in the case, we find it unnecessary to discuss that question.

Conceding, therefore, for the argument, that the alleged violation of the contract is passive, and that the case is controlled by the provisions of Art. 1933 of the Civil Code, we think that plaintiff’s demand on the face of the pleadings is amply protected by the first exception which the Code makes to the article under consideration, and which reads as follows:

“When the thing to be given or done by the contract was of such a nature that it could only be given or done within a certain time, which has elapsed, or under, certain circumstances, which nodonger exist, the debtor need not be put in legal delay to entitle the creditor to damages. ’ ’

Prom the contract, which is annexed (to the petition, it appears that the lease was for a term of five years, and that the clause which has a bearing on the present controversy reads as follows:

“The lessees further obligating themselves to keep the herein leased premises, including all buildings, fences, ditches, improvements, etc., in good order and repair during the continuance of this lease, and at the expiration hereof to surrender the same to the said lessor in the like condition, good order and repair, in which they acknowledge to have received the same.”

And the charge is that in violation of their agreement the defendants allowed the buildings to become dilapidated, the fences to fall, and the ditches to become choked and obliterated, in consequence of which the lessor was damaged in the amount claimed herein.

Under a proper construction of the contract it appears to us that at any time before the expiration of the lease, even a few weeks before that time, the lessees conld have repaired the buildings, rebuilt the fences and reopened the ditches, all in a manner sufficient to have restored the leased premises in the same good order and repair in which they had received them. In such a case the lessor would have had no cause of complaint under the law. It is on the other hand equally clear that it was too late for the lessees to undertake such works and repairs after the expiration of the lease. Hence it follows that the time for action on the part of the lessor did not occur or arise until or before the expiration of the lease, although he had already suffered apparent damages.

But at about that time, the circumstances under which the lessees could restore the leased plantation to proper repair and good order, and which circumstances were their possession of the premises as lessees, had ceased to exist. It is therefore apparent that when the obligation of the lessees to restore the leased premises to good order and repair for the purpose of surrendering the same to the lessor culminated, the latter had yet no authority in law to require the necessary repairs, and that his right only accrued at the very moment that the possession of the premises reverted to him, under the contract. But, as we have said, it was then too late to coerce the lessees to a specific performance, and the law can not impose a useless proceeding, as a prerequisite to a legal demand. Beck vs. Fleitas, 87 An. 493.

We therefore conclude and we hold that in this case the law could not, and did not, require that plaintiff’s demand should have been preceded by a putting in default. In plaintiff’s petition it is averred that nearly a year before the expiration of the lease he had sold and parted with the possession of the leased plantation; and that circumstance is made the ground of a second exception on the part o'f the defendants, who urge that this sale having been made before the time for repairing had elapsed, plaintiff has no interest in the value of said repairs. An easy answer to that contention would be that the lessor is not here claiming the value of the neglected or omitted repairs; his demand is for the damages caused to his property by the neglect or failure of the lessees to make the repairs and works stipulated in the contract.

In his petition he avers that owing to the dilapidated condition of the plantation, as a result of the lessee’s violation of their obligation, he was compelled to accept as purchase price therefor, $5000 less than would have been its actual or market value, if the same had been in proper repair, or in the same order in which the lessees had received it at the commencement of the lease.

We are clear in the opinion that such allegations unquestionably disclose an actionable interest in the complaining lessor. But the present ease is still stronger. Plaintiff alleges that in the act of sale which he made |of the property he specially reserved all his rights and claims as lessor, including in terms the right “to sue for the recovery from the said James and Trager of all damages which the said plantation should have sustained while in their possession.”

It has been held in our jurisprudence that “the purchaser of property is presumed to acquire all actions appurtenant to the property and necessary to its perfect enjoyment; but as to damages actually suffered by the vendor before the sale they are personal to him and can not be recovered by the purchaser without an express subrogation.” Clark vs. Warner, 6 An. 408.

In this case the damages claimed by the lessor were continuous from the beginning to the end of the lease, and an amount of $5000 was alleged to have been already occasioned at the time of the sale, although the right to claim the same had not yet accrued. And the vendor, far from subrogating his right to claim these damages to his vendee, specially reserved his right of action thereunder.

Hence we conclude that there is no merit in the second exception.

We note that the District Judge rested his decree exclusively on the strength of the first exception without reference to the second. But both were means of defence submitted below, and both were proper, subjects of judicial consideration on appeal; and the ends of justice were best subserved by disposing of both at this time. Executors vs. Schenck et al., 41 An. 465.

It is therefore ordered that the judgment appealed from be annulled, avoided and reversed, that the exceptions herein interposed by the defendants be overruled and dismissed at their costs in both courts, and that the cause be remanded to the District Court for further proceedings according to law.

Mr. Justice Fenner recuses himself on account of affinity to plaintiff.