text:
    No. 10,822.
    Succession of R. F. Allen.
    1. The maxim lemort saisit le m/does not apply to such irregular heirs as the surviving spouse.
    2. Articles 930,931 and 949, Rev. O. C., prescribe the steps to be taken by the surviving spouse in order to be recognized as heir of the deceased spouse and to be sent into possession of his estate.
    3. These articles contemplate a proceeding in the nature of an action taken contradictorily with a “ person to be appointed to defend the interests of the absent heirs, in case there.are any.”
    4. A decree of possession rendered without the appointment of such a representative; without an inventory taken in his presence; without requiring or giving of security in a purely exp arte proceeding, is invalid and null.
    APPEAL' from the Oivil District Court for the Parish of Orleans. Voorhies, J.

      Kernan & Layeoek and Fergus Kernan for Appellants.

      Henry G. Miller for Appellee.
   The opinion of the court was delivered by

Fenner, J.

Under the remanding ordered by us in our former decree rendered herein and reported in 43 An. 1072, the judge a quo has heard testimony “as to the heirship of appellants and their right to appeal;” and that testimony, together with the certified finding of the judge, in favor of appellants, are now brought up, and should have been filed as a supplement to the original transcript and under the same title and number.

We disregard its filing as a separate transcript under a different number.

We have no concern with the finding of the judge a quo on this remanding, except as affecting appellants’ right and interest to appeal, and to examine whether it is sustained by the testimony taken.

That testimony clearly establishes the heirship of appellants and. their right and interest to take the appeal, whibh they presented here in November last. We have nothing more to do with this testimony, and take up the appeal precisely as it stood when remanded.

That appeal was taken from a judgment recognizing the widow of the decedent as widow in community and as his sole heir, and putting her, as such, in possession of all his property, rights and credits, assets and estate of every nature.

The judgment, in so far as it recognizes the surviving widow as heir and puts her in possession of the decedent’s estate, is an obvious nullity for want of compliance with the express requirements of the law.

Article 949, R. O. 0., reads: “ Natural children and the surviving husband or wife, before being put into possession of the estate left to them, are not considered as having succeeded to the deceased from the instant of his death, but they do not the less transmit their rights to their heirs, if they die .before having made their demand to be put into possession. The reason is, that this sort of heirs having only a right of action to cause themselves to be put in possession of successions thus falling to them, this right and this action form a part of their successions, which they transmit to their heirs.”

Article 980 of the Civil Code provides: “ The surviving husband or wife, called to the succession of the other who is deceased, must cause the seals to be affixed on the effects thereof and be authorized to take possession of the same by the judge of the place in which the succession is opened, after- having caused a true and faithful inventory to be made by a notary, duly authorized to that effect by the judge, in the presence of a person appointed to defend the interests of the absent heirs of the deceased, in case there are any, and after having given good and sufficient security as prescribed in the following article:”

Article 981 requires security to the full estimated value of the estate, “ to the end of securing the restitution of thekestate in case any heir should come forward within the space of three years,” etc.

The maxim le mort saisit le vif, son hoir plus proche et habile a sucoéder, does not apply to irregular heirs, such as the surviving spouse.

The law evidently contemplates a proceeding in the nature of an ction taken contradictorily with “a person appointed to defend the interests of the absent heirs, in case there are any,” whose duty it would be to inquire as to the existence of heirs, and to see that the proceedings were properly conducted, that a complete inventory and fair appraisement should be made, and that good and solvent security ¡should be given.

No such representative was appointed in this case; the inventory was taken without the presence of such a representative; no security was required or given; the whole proceeding was entirely ex parte.

If we should recognize the validity of such a judgment, the articles ■of the code above quoted might as well be expunged.

We do not understand that the learned counsel of appellee contests the annulment of the judgment. He asks that our decree should be accompanied with an express reservation of all the rights of Mrs. Allen as a creditor of her husband, and as widow in community, and of any other nature. We do not perceive how such rights can be affected by our decree of reversal, which only restores the conditions and rights of parties as they stood before the judgment, or requires such restoration to be made. But as it can do no harm the reservation will be made.

It is therefore ordered and decreed that the judgment appealed from be annulled, avoided and reversed, and the prayer of the widow to be recognized and put in possession as heir be rejected, without prejudice to her legal rights as widow in community, or as creditor •of her husband. Appellee to pay costs.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 11,040.
    Successions of Mr. and Mrs. A. Mannessier.
    Where the question is of the acceptance vel non of title, by a purchaser of real property, at succession sale, the proof disclosing that the alleged undivided interest of a minor was transferred to the deceased by its parent, during her lifetime, and that, consequently, no title by inheritance passed ¡jat her death9 rule on the adjudicatee must be made absolute, as the tendered title is unquestionably clear.
    PPEAL from the Oivil District Court for the Parish of Orleans. Ellis, J.

      F. Miehinard for Appellee.

      E. J. Méral for Appellant.
   The opinion of the court was delivered by

Watkins, J.

At a public judicial sale of certain real estate of the succession of Josephine Breinsut, widow of Augustin Mannessier, deceased, made in pursuance of an order of court to pay succession debts and charges, same was adjudicated to Germain Lafon, at the price of $3550, which he declined to pay, and being ruled to show cause why he should not complete the adjudication and accept title, he made the following answer in substance, viz.: that the succession of widow Mannessier is not the owner of one undivided one-fourth interest in the property adjudicated, same being owned by the minor, Auguste Broussard, only heir of Héloise Mannessier, daughter and legatee of Augustin Mannessier, deceased.

The District Judge discharged the rule and relieved the purchaser from compliance with his bid, but upon reconsideration, changed his opinion ahd made the rule absolute, and from the decree thus rendered this appeal is prosecuted.

The facts appear to be as follows, viz.:

At the death of A. Mannessier on the 2d of November, 1880, the property in contestation was jointly and equally owned by A. S. Leclerc and the deceased.

By the terms of the latter’s will, his community interest therein of one-fourth was bequeathed to his daughter, Mrs. Broussard, and his step-son, Leclerc, equally, and the usufruct of same to his surviving widow. Hence, the widow Mannessier was owner in her community right of one-fourth; the daughter, Mrs. Broussard, of one-eighth; and Leclerc of one-half and one-eighth — or in other phrase, widow Mannessier owned two-eighths, Leclerc five eighths, and Mrs. Broussard one-eighth.

This appears from the will of the deceased and from other evidence in the record; but the contention of counsel for the succession is, and the judge decided, that the interest of Mrs. Broussard was completely eliminated from that of her co-owners, and vested in widow Mannessier, by means of an adjustment and transaction that was entered into between them, and which, it is alleged, is evidenced by a written agreement to that effect, under date of December 6,. 1880, only a few days after the death of the testator.

The document referred to is in evidence, and in the course of the assignment of his reasons for judgment the judge a quo says of it, viz.: “It seems to me that by the agreement of all these parties of age, Mrs. Mannessier bought or acquired the interest of the testamentary heirs — i. e., their naked ownership (she being the usufructuary of this one-half interest) at the fixed price of $1640, and retained the price fixed as usufructuary for the term of her life, with the obligation that that price — not the one-half of the property in kind, but the price in money — would be due to them and payable out of the moneys of her succession,” etc.

That such is the clear and correct interpretation to be placed upon the language of that act, there is no doubt.

It is a private writing entered into and signed by Josephine Mannessier, A. S. Leclerc and Heloise Mannessier, the three parties above named, and it is styled an “agreement between testamentary heirs,” etc.

It imports a full and complete succession settlement, in which provision is made for the payment of succession debts; and, for the declared purpose of putting the widow in funds wherewith to pay such debts, the heirs transferred their interest in the property to widow Mannessier, to save cost and expense.

This they hada perfect right to do, as all the parties were sui juris’

The interest and title of Mrs. Heloise Broussard having passed during her lifetime to Mrs. Mannessier, her minor child inherited nothing, at her death, but the mother’s interest in the unliquidated succession of A. Mannessier, her deceased grandfather, and that of widow Mannessier, deceased, who was full and complete owner of •the property in question.

The judge a quo was unquestionably correct in admitting the written acts in evidence, treating the objection urged as going to their effect, only.

Judgment affirmed.


author: Fenner, J.

text:
    No. 10,931.
    The State of Louisiana vs. Patrick Hennessey.
    This court will not entertain appeals based on the illegality or unconstitutionally of fines imposed by municipal ordinance, when that question was not presented or passed upon in the lower court.
    ■A PPEAL from the Fourth Recorder’s Court for the Parish of Orleans. Smith, J.

      Henry Renshaw, Assistant Oity Attorney, and Carleton Hunt, City Attorney, for Plaintiff and Appellee.

      Wm. L. Thompson and J. M. Pratt for Defendant and Appellant.
   The opinion of the court was delivered by

Fenner, J.

The case presents no ground for our jurisdiction except the illegality or unconstitutionality of the fine imposed under a. municipal ordinance. As the record does not show that this question was presented or contested in the court below, we must, under our settled rule, dismiss the appeal.

Appeal dismissed at appellant’s cost.


text:
    No. 11,016.
    Mrs. M. D. Ryan vs. Louisville, New Orleans & Texas Railway Company.
    1. Courts and text writers are divided as to where lies the burden of proof on the question of contributory negligence, but all agree that, if plaintiff’s own evidence establishes or strongly suggests his own contributory negligence, that bars recovery, no matter where the burden rests, unless he shall remove or explain away'the adverse presumption thus created.
    2. In this case the evidence of plaintiff’s own witnesses fully establishes that the injury sued for was caused by the carelessness and negligence of the party injured, without proof of even concurring fault in defendant.
    APPEAL from the Twenty-sixth District Oourt, Parish of Jefferson. Rost, J.

      Rouse & Grant for Plaintiff and Appellee:
    1. A special plea waives the general issue. Hawkins vs. N. O. P. & P. Co., 29 An. 136; Lesseps vs. Wicks, 12 An. 739; Bornar vs. L. H. & S. R. Co., 42 An. 983.
    2. Contributory negligence is always a matter of defence, and the burden of proving it is upon the defendant. Inland, etc., Go. vs. Tolson,[139 U. S. R 551; Ind. & St. L. R. R. Co. vs. Hor3t, 93 IT/ S. R. 291; Railroad Co. vs. Gladmore, 15 Wall. 401; - Georgia Pac. Ry. Co. vs. Davis, 9 So. Rep. 255.
    3. A man should not be held responsible for statements made while suffering from the shock and pain of fatal injuries. Inland, etc., Co. vs. Tolson,189 U. S.R. 551..
    4. The conductor of a railway train is not a fellow servant of the engineer, fireman or brakeman, and the master is liable to them for injuries sustained in consequence of his neglect. Chicago & Milwaukee R. R. Co. vs. Ross, 112 17.'S. 377; Town vs. R. R. Co., 37 An. 632; Gilmore vs. N. Pac. Ry.'Co., 18 Fed. R. 866."

      5. It was gross neglect of duty to permit the fireman to operate the locomotive. E. N. R. R. Co. vs. Moore, S3 Ky. 675; Peyton vs. Railway Co., 41 An. 863.
    6. The master has no right to expose the servant to perils against which he may be guarded by proper diligence. Hough vs. Railway Co., 100 TT. S. R. 217; 7 Am. and Eng. Ency. of Law, 845; E. & T. H. R. Co. vs. Guyton, 33 Am. and Eng. R. R. Cases, 311; Harper vs. I. & St. E. R. Co., 4 An. Rep. 352.
    7. Co-operation of a fellow servant in the negligence of the master does not relieve the master from responsibility. Town vs. Railroad Co., 37 An. 632; Tutrix vs. Sellers & Co., 39 An. 1011; G. T. Ry. Co. vs. Cummings, 106IJ. S. R. 701.
    Farrar, Jonas & Kruttschnitt for Defendant and Appellant:
    1. Plaintiff’s husband was killed entirely by his own fault and negligence, while coupling a freight train.
    2. If there ^as any negligence, it was that of the fireman, or of the fireman and engineer, who were decedent’s fellow servants. See Conflict of Judicial Decisions, p. 322; Hobbs vs. Atlantic & North Carolina Railroad Company, 44 Am. and Eng. R. R. Oases, p. 592, and notes.
    3. The court below erred in charging the jury that the burden of proof to prove contributory negligence was on the defendant.
   The opinion of the court was delivered by

Fenner, J.

The petition alleges (in substance) that Matthew D. Ryan was employed as brakeman on one of the defendant’s freight trains, and, on January 10, 1891, while coupling cars, was knocked down and run over by the train which was being backed down to be coupled. His leg was cut off, and he was otherwise badly hurt, and two days afterward died from his injuries. At the time of the accident, the engineer in charge of defendant’s locomotive was not upon his engine, and it was being operated by the fireman. The plaintiff is the widow of the said Ryan, and sues in her own behalf, as well as in behalf of her two minor children, issue of her marriage with said Ryan, for the recovery of the damages which she and they suffered from his death, as well as the damages he suffered from his injuries, the action for which survived to said minors. The accident which caused said Ryan’s injuries and death is alleged to have been due to the gross fault and negligence of the defendant, he being without fault on his part.

The negligence and fault alleged is that of the conductor in ordering the fireman to do the switching in the absence of the engineer j said fireman being incompetent to handle the engine, and such incompetency being the immediate cause of Ryan’s injuries and'death'. (R., p. 1, et s'eq.)

The defendant’s answer is a general denial, followed by two special pleas, viz.: “ Defendant, further answering, denies that the death of said Ryan was in any manner due to negligence, carelessness and want of skill on the part of defendant or any of its employees.

‘ ‘And defendant, further answering, says that the death of said Ryan was due entirely to his own carelessness and negligence.” (R., p. 7).

There was a verdict and judgment for the plaintiff for $6000, and defendant appealed.

Obviously, under these pleadings, the issues presented are three, viz.: (1) Whether the injury of Ryan was caused by the fault of defendant; or (2) whether it was caused solely by his own fault; or (3) whether it was caused by the joint fault of both.

Under the facts of this case we need not discuss the question as to where lies the burden of proof under the plea of contributory negligence. On this question there exists a wide divergence of opinion among courts and text writers. Oooley on Torts, p. 673; Pierce on Railroads, — 320; Bishop Non-Oont. Law, Sec. 470; Beach on Oont. Neg., p. 432, Sec. 157; Wharton on Neg., See. 427; 4 Am. and Eng. Eney. of Law, p. 92.

The facts of the case are peculiar.

No one saw Ryan at the moment when the accident occurred, and no one was able to state, of his own knowledge, how it happened. The only evidence on that point consists of statements made by Ryan himself immediately after the accident, and proved by plaintiff’s own witnesses.

These statements,, as proved by three witnesses put on the stand by plaintiff, were to the effect that, as the train backed to make the coupling, he stepped in between the cars, holding the coupling pin in position to make it, when he accidentally dropped the pin; that the train was backing so slowly that he thought he could pick it up in time; that he stooped for that purpose, and, as he did so, his overcoat was caught by the wheel of the approaching train, which dragged him down and caused the injury.

This evidence is contradicted by no witness, and does not necessarily conflict with any subsequent statement made by Ryan himself. The only subsequent statement made by him on the subject was the bald and unexplained one that “ Myers (referring to the fireman who handles the engine) did him up,” which might be the simple statement of a fact without necessarily attributing blame.

The evidence suggests no other plausible theory on which the accident can be accounted for. It is proved that the cars, tracks and coupling appliances were all in good order and condition, and the train was properly and prudently handled in making the coupling. It is true that the engine was in charge of the fireman, owing to the fact that the engineer was called to the station telegraph office to receive his orders, which he is required by the rules of the company, and of railroad companies generally, to receive and receipt for in person. But the evidence shows that in railroad service the position of fireman is a post of preparation for the duties of an engineer; that Myers had occupied the place for a considerable period; that he had had experience in the handling of engines; that he was competent for such service, and stood in rank for speedy promotion to the position of engineer.

Moreover, it does not appear that he committed the slightest fault in the handling of the train on this occasion. It is true one witness, when asked at what rate of speed the cars were moving, answered, “I suppose four or five miles an hour, perhaps less;” but this statement can not refer to the speed at the moment of reaching the coupling point, because it would be in conflict with all the other evidence in the case, which shows that the movement was slow and the cars did not strike hard in meeting.

This statement of the evidence decides the case and leaves room for no comment beyond the expression of surprise that we should be called upon, on such facts, to reverse a verdict and judgment against the defendant, which seems to us to have established both the special averments of its answer that the death of Ryan was not caused by any fault of its own or of its employees, and that it was “ due entirely to his own carelessness and negligence.”

It is therefore adjudged and decreed that the verdict and judgment appealed from be annulled and set aside, and that there be judgment in favor of defendant, and rejecting the demand of plaintiff at her cost in both courts.


author: Breaux, J.

text:
    No. 10,019.
    The State of Louisiana vs. Lewis C. Garibaldi.
    A city, under the power to regulate markets, may adopt such regulations as are necessary for the preservation of public health and conducive to the public interest.

      But one who complies with all the requirements of the ordinances of the council of a police and sanitary character can not be required to produce the written consent of a majority of the property owners within 600 feet of the place selected to open a private market.
    The State government may delegate to a municipal corporation part of its own powers. These ¡powers can not be delegated or vicariously exercised unless the authority to delegate is specially granted by the Legislature, nor can the municipal corporation divest itself of the discretion vested by the statute.
    APPEAL from the Second Recorder’s Court for the Parish of Orleans. Aucoin, J.

      Branch K. Miller for Plaintiff and Appellee:
    Ordinances which provide that it shall be unlawful for any one to setup or establish a private market without permission of the City Council, granted on a written petition, accompanied by the written consent of the property owners of the vicinity, which provides also that the building in which the private market is conducted shall be properly flagged and ventilated, shall have a superficial area of 10x15 feet, shall be 16 feet high, and the sides of which shall be 10 feet from any dwelling house, are constitutional and legal.
    When an ordinance is passed under express legislative authority, there is no power in the courts to examine the question of its reasonableness; it is only where an ordinance is passed under a general or implied power that the question of reasonableness vel non is subject to judicial review. 11 Am. and Eng. Corp. Cases, 424; 60 Cal. 82; 12 Minn. 49; 29 111. 317.

      W. J. Waguespack and Jos. F. Porfié for Defendant and Appellant:
    1. It is a breach of the Fourteenth Amendment to the Constitution of the United. States to empower any man or body of men, at his or their absolute and unrestrained discretion, to give or withhold permission to carry on a lawful business in any place whereby unjust and illegal discrimination is made possible-Tick Wo vs. Hopkins, 118 U. S. 356; 6 Sup. Ot. Hep. 1069; State vs. Mahner, 43 ^.n. 496; 9 South. Hep. 480; City of Baltimore vs. Kadecke, 49 Md. 217.
    2. Under the terms of Act 116 of 1888, the Oity Council can vest neither themselves-nor the property owners within 600 feet of private markets with the arbitrary power to prohibit private markets in the populous districts of the city of New Orleans, nor have they the right to create a monopoly. Acts 1888, No. 116; ' Const, of La., Art. 258.
    3. The City Council can not, under pretext of regulating, pass ordinances which are unreasonable, vexatious, oppressive, in restraint of trade or ultra vires. 14 Eng. and Am. Ency. of Law, 462; 16 Pick. 121,125; 33111.416; 29111.317; 46111. 489; 45 N. J. L. 310; 7 Paige, 261.
    4. Whether an ordinance be or not reasonable is a question of law for the court. Dillon’s Mun. Corp., pp. 312, 396, 404, Sec. 327; Angelí and Ames on Corp., Sec. 357; 15 Pick. 121; 26 N. J. 298.
    5. An ordinance which requires the building in which a private market is to be kept to have a ceiling 16 feet high, to be flagged, to be 10x15 feet in superficial area, and both sides,thereof to stand at a distance of 10feet from any dwelling, is unreasonable and vexations, in restraint of, trade smáuUra vires, and under the guise of regulating, in reality prohibits private markets. ■

      6. Tbe defendant’s private market having been established on the faith of Ordinance 4145, O. S., and being not a nuisance per se, can not be destroyed by the subsequent passage of Ordinances 5748 and 5798. O. S. Am. and Eng. Eney. of Law, Vol. 15, p. 1179; Barthet vs. New Orleans, 24 3Ted. Rep. 563; 14 Mich. 41.
   The opinion of the court was delivered by

Breaux, J.

The law-making power having authorized the City Council of New Orleans to pass such ordinances for the government and regulation of private markets, as they may in their discretion deem proper, and having vested them with authority for their enforcement subject to certain limitations. The City Council adopted Ordinance 5748, C. S., amending Ordinance 5798, prohibiting the establishment of a private market for the sale of meat or other comestibles, except fruits, without permission previously obtained on a petition, with the written consent of a majority of the property owners, within six hundred (600) feetof the place selected to open a private market, and further prohibiting said market, unless the building has proper flagging and ventilation, and measures not less than ten (10) by fifteen (15) feet in area, and sixteen feet in height, and with no dwelling ón either side nearer than ten feet.

From the sentence and judgment finding him guilty of having violated the said ordinances and condemning him to pay a fine of $10 defendant appeals.

The following are the agreed facts:

The defendant carries on a private, market, in a building measuring twenty feet in width by thirty feet in depth, having three openings in front eleven feet in height by four in width, and two doors-in the rear, ten feet high, by three and one-half feet wide, opening-on a yard forty feet in depth.

The floor of the building is of wood.

It is a three-story building, fifty-five feet in height, the lower ceiling being eleven feet from the floor; it is one of a continuous row of buildings, with ceilings about, the same height, separated by a pingle wall between each tenement.

On one side of the private market is a boarding house, nearer than ten feet, and on the other a warehouse in which goods are stored.

It is in a populous.district.of the city.

The defendant .has .paid his license.

It is further admitted that he has complied with the ordinances relative to private markets preceding those under which he is prosecuted, and that he established his said private market long prior to the adoption of the said ordinances.

Testimony was admitted to prove that wooden flooring is preferable, as being more healthy to stand on, than on flagging. It was shown that slats or planks are used to stand on, on flagged floors.

The plaintiff controverted this testimony and examined witnesses, who testified with some particularity, with reference to the unhealthiness of wooden floors and their inferiority in many respects to pavement in a market house.

The defendant’s plea in bar, filed preliminarily, was overruled, in which he urged that the ordinance under which the prosecution was instituted confers arbitrary power on certain property owners to give or withhold [their [consent, and is an unjust discrimination, a monopoly and a grant of exclusive privilege in violation of the Constitution of the United States and of this State.

That they are prohibitive, and favorable to the lessees of the stalls in the public markets.

That the ordinances themselves violate the act of the Legislature, No. 116 of 1888, authorizing the government and regulation of private markets. That to compel him to carry on his private market in a building with paved floor, with the dimensions required by the ordinance, is unreasonable and oppressive, ultra vires.

That his private market was authorized by Ordinance No. 145, and his rights as the keeper of a private market can not be affected by subsequent ordinances.

The Legislature has often delegated authority to municipal corporations to impose restraint upon the vending of fresh meat and vegetables.

It has frequently been the cause of litigation, but it has generally been held to be reasonable.

With reference to private markets, the power to prohibit their establishment within a certain number of squares of the public markets was ably opposed in the courts. It is now settled that there was no ground of complaint of the violation of a private right.

The right of the sovereign to exercise the police power to maintain the cleanliness and salubrity of a city does not admit of question.

Markets require restraint to prevent their becoming injurious to-the public.

All regulations requiring ventilation of the building in which markets are opened; about laying of floors, and ordering that reasonable space be provided between the buildings, adopted in the interest of public health, are unobjectionable — if not arbitrary, and if they do not discriminate against private rights.

If, however, the defendant were to comply with all the regulations emanating from the Council relating to private markets, to which we have just referred, he would still have to present a petition to the Council, with the written consent of a majority of the property owners within 600 feet of the places elected to open a market; otherwise it would not be possible for him to continue his business.

The consent of certain property owners is made an absolute condition to granting the right.

The Council’s discretion in governing and regulating private markets does not authorize them to confer the right on the majority of these property owners to determine whether a proposed market shall be opened.

The special law under which the ordinances were adopted provides that the Council shall not prohibit private markets within the populous districts of the city.

It may be that the property owners will refuse their signatures,, without sufficient cause, and thereby prevent the establishment of a private market despite the rights guaranteed under the terms of the statute.

Certain police power is vested in the Council to make, ordain and establish all manner of wholesome and reasonable ordinances not repugnant to the Constitution, as they shall judge to be for the good and welfare of the public.

The responsibility is with them, and the authority can not be delegated to a majority of property owners of a locality.

“Nor can this power be delegated to private citizens.” A. and E. Bnc. of Law, Yol. 15, p. 1004.

The City Council are the trustees appointed to ¡legislate and administer in their representative capacity, and can not divest themselves of their responsibility by requiring that the consent of property owners be obtained to open a legitimate business. Cooley Const. Limitations, p. 249.

The legislature in the act of incorporation has not conferred upon the council the power of delegation-in the manner proposed.

The representative system is a substantive and valuable institution in organized politics. It must maintain its protecting authority against unjust discrimination and arbitrary action.

The legislative powers delegated are regarded as trusts and are not subject to be delegated by those to whom it is confided. American and English Ency., p. 1043,.Yol. 15.

“An ordinance of a municipal corporation which violates any of the recognized principles of legal and equal rights is necessarily void so far as it does so.” State vs. Mahned et al., 43 An. 496.

One of the conditions imposed being illegal the plaintiff can not maintain its judgment.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and the suit of the city against the defendant be dismissed, with costs of both courts.


text:
    No. 11,044.
    The State of Louisiana vs. Bat Vaughn.
    1. In case evidence is admitted to the jury over the defendant’s objection, in reference to the larceny of goods which are not specially mentioned in the indictment, the verdict will not set same aside on that account, if there appears to be no doubt of the larceny of the goods mentioned having been established at a time when the accused was the burglarious occupant of the premises upon which the larceny was effected.
    2. Proof tho.Va/nother person has boon or is being prosecuted for the same offence is incompetent and inadmissible, inasmuch as it does not go to the question of the previous acquittal or conviction of the accused.
    APPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Buckner, J.

    W. H. Rogers, Attorney General, for the State, Appellee.

      T. A. Moore, Wm. Duncan and L. E. Droz, for Defendant and Appellant.
   The opinion of the court was delivered by

Watkins, J.

The defendant prosecutes this appeal from a verdict and judgment convicting Mm of burglary and grand larceny, under wMch he was sentenced to one year’s imprisonment at hard labor in the penitentiary, placing his reliance for relief, principally, upon two bills of exception reserved during the trial.

In this court the defendant’s counsel filed an assignment of errors, viz.: (1) that the record does not show that the accused “was present in court during the entire trial’ ’ and when the verdict was rendered; (2) that the record does not show that the information was filed with leave of the court.

But, as no argument is presented in support of this assignment, these alleged errors may be considered to have been abandoned; and an examination of the record satisfies us that the claim is not meritorious.

With regard to the first bill of exception we find that the following is a fair statement of the question in dispute, viz.:

The information in one count charges the defendant with having burglariously entered the store and warehouse of Garig, Reddy & Oo. in the night-time with intent to steal the goods and property of said firm; and, in another count, he is charged with having stolen while in said storehouse certain enumerated articles, the respective values of each being given in detail — it being concluded by the phrase “and other articles of merchandise of total value exceeding $100.”

During the progress of the trial, evidence was offered on the part of the prosecution, and admitted to the jury over the objection of the defendant’s counsel, and which was to the effect that the accused had stolen, on the occasion referred to, articles which were not specifically enumerated and described in the information.

The trial judge states that in his charge to the jury he explained to them fully that it was their duty to restrict their finding to the particular items set out in the information, and not to consider anything not therein mentioned; and to which charge the defendant made no objection.

As thus presented the question is somewhat sui generis.

There seems to be no doubt of the guilt of the accused, in so far as the larceny of the property that is described in the information is concerned; and, apparently, none of the burglarious entry of the accused.

Hence, it seems to us manifestly improper to set aside the verdict, conceding for the argument that the evidence complained of was incorrectly admitted.

It was doubtless on this theory that the judge gave the jury the instructions he did.

If the ease were stripped of the features we have jusc alluded to, we should find no difficulty in reversing the verdict; but, under the circumstances, it is our opinion justice has been done; particularly, as the jury recommended the accused to the mercy of the court, afid the judge'only pronounced sentence against him of one year’s imprisonment.

The case stated falls within that exceptional class of cases covered by State vs. McFarlan, 42 An. 803, though not predicated upon the same grounds as that case was.

The second bill of exceptions is clearly untenable, based as it is upon the trial judge’s refusal to permit the defendant to prove that other parties had been contemporaneously indicted for the commission of the same crime as that which was charged against him.

It is not possible to perceive in what way such prosecution? could affect the prosecution against him. The State is certainly under no obligation to proceed against each one of several suspects, separately; nor does the fact that she has thus elected to proceed impair her right to proceed against others at the same time, or at a subsequent time.

The defendant’s objection does not go to the question of the admissibility of evidence tending to prove his previous acquittal or conviction of the crime charged, and the evidence offered was clearly incompetent.

The defendant has failed to make out a case for relief.

Judgment affirmed.


author: McEnery, J.

text:
    No. 11,006.
    Mrs. Sarah Nicol vs. The Illinois Central Railroad Company.
    As against the lawful owner, the possessor of immovable property must be pro > tected against the unlawful disturbance of his possession.
    Public order and the highest interest of society demand that no violence shall be done to one in peaceable possession of property.
    In action for damages for trespass and destruction of property, the title to the property maybe offered in evidence in aid of the proof of peaeeablepossession.

      APPEAL from the Eighteenth District Court, Parish of Tangipahoa. Thompson, J.

      Reid & Reid and S. D. Ellis for Plaintiff and Appellee:
    The highest standard of damages will be adopted to punish the wrong-doer, when the proof shows a wanton and malicious trespass. 1R. 140; 13 An. 102; 13 An. 116; 29 An. 214; 30 An. 926; 34 An. 1158.
    The actual damages proved by plaintiff is correctly found by the District Judge, and amounts to about $800. But his award of only $200 punitory damages is wholly inadequate, and should be increased, under plaintiff's prayer *to amend the judgment. A general judgment for $5000, as prayed, without separation into actual and punitory damages, will be a just award, and will align this case with all the other decisions of this court on the subject of wilful trespass.
    Five thousand dollars damages against a rich corporation will not be excessive, when this measure has been adopted in suits against individuals, under like circumstances.

      W. B. Kemp and Girault Farrar for Defendant and Appellant;
    1. That this is a petitory action is clear from the following indicia:

      (а) Plaintiff claims ownership simply.
    (б) She offered in evidence titles to support her ownership.
    (c) She sued a lessee in possession-of the res.

    (d) The judgment decreed that the plaintiff “ recover the property in contest.” C. P., Arts. 5, 54, 43, 44; Irwin vs. Bledsoe, 33 An, 619.
    2. Being a petitory action plaintiff must show title against the world. O. P., Art. 44; Murray vs. Bossier, 10 M. 292; Hempkin vs. Britain, 12 Rob. 46; Meeker vs. Williamson, 4 M. 625. '
    3. The locusin quo is too indefinite for identity, and all evidenceshould have been excluded. The demands of the petition could only be carried out by hearing parol testimony. O. 0., Arts. 2440, 2276; McKenzie vs. Bacon, 40 An. 157.
    4. The very evidence, so far from proving ownership, tends to prove only a personal servitude in Benjamin Weil, a perfect usufruct. Civil Code, Arts. 533, 534, 646, 606.
    5. The right of way grant by Ben j. Weil to the 3ST. O., J. & G.K". R. R. Co., in 1854, contains no reservation of any “ perpetual right ” to any lot or parcel of ground or of any servitude thereon. This grant carried with it by necessary implication everything upon the land contained in the right of way grant. Roreron Railroads, Vol. 1, pp. 422, 423, and authorities.
    6. There being no evidence of ownership in plaintiff of the locus in quo, and there being no other real right set up, the judgment must be reversed.
   The opinion of the court was delivered by

McEnery, J.

The plaintiff alleges that she is the owner of a certain lot of ground on which a building has stood for more than thirty years, situated in Areola, Tangipahoa parish, fronting on the Illinois Central Railroad, formerly the New Orleans, Jackson & Great Northern Railroad, and occupied by Alfred Rhody June 26, 1878, and that she had been in peaceable possession of said property for more than thirty years prior to October, 1890; that in said month of October, said house was burned to the ground, and that in the month of November of said year 1890 she was procéeding to rebuild said house, and for this purpose had employed a carpenter, had purchased lumber, bricks and other materials, and placed the same on said lot of ground; that the foundation of said building was laid when the defendant corporation, domiciled in the city of New Orleans, through its agents and employees, acting under instructions from its officers, forcibly and unlawfully entered on said lot of ground, ejected the workmen of petitioner, removed and destroyed the brick and other building material placed thereon to be used in the construction of said store house.

She avers that she was receiving $25 per month rent for said house,, and when rebuilt could have leased it for a larger sum.

She prays for damages for the loss and destruction of the material, for vexation, annoyance, and the wanton trespass by said defendant corporation, aggregating §5000.

The defendant corporation in its answer claims title to said property as being within the limits of the right of way granted to it.

It insists that the action is a petitory one, and that the plaintiff has shown no title to the property as against the world.

The recitals of ownership by the plaintiff are only incidental to the possession which she alleges, and which she claims had been disturbed by the defendant corporation. Her titles to the property were received in evidence over the objections of the defendant. The titles to the property were proper evidence to show possession and in aid of her allegations that she had been in possession for more than thirty years. The objections went only to the effect of the evidence. Whether the defendant owned the property or not, it was not justified in disturbing the possession of the plaintiff, and forcibly and unlawfully destroying the material which she had placed on the lot, even destroying that portion of the building in course of erection.

There was judgment for the plaintiff for the sum of §250 attorney’s fees, $80 for damage to material, $200 as punitory damages, and $25 per month from November, 1890, until the final termination of the suit.

The defendant has appealed.

There is no real conflict in the testimony. The plaintiff was a possessor of the property, and the allegations in her petition as to the unlawful acts of the defendant corporation are fully sustained by the evidence.

The courts were open to defendant to assert and prove title to this property. It ignored their existence, and took the law in its own hands.

The law jealously protects the possession to property against invasion and violence. It punishes with severity the trespasser, although he may believe he has some right which he can enforce by violence. Public order and the highest interest of society require that no violence shall be done to one in peaceable possession of property. As against the lawful owner, the possession of immovable property must be protected against the unlawful disturbance of his possession.

The acts of the defendant were without the slightest palliation or excuse.

While we may differ from the trial judge in his apportionment of damages, we are of the opinion that the amount allowed is not excessive for actual loss and the annoyance and vexation to the plaintiff by the unlawful conduct of defendant.

Judgment affirmed.


text:
    No. 11,055.
    The State ex rel. Francis Carreau vs. The Judges of the Court of Appeals for the Parish of Orleans.
    In a succession that has been administered and the whole succession ordered to be put in possession of the heirs, and the executor ordered to retain an amount to pay the debts, this amount is the sum to be distributed and is the tost of jurisdiction on an appeal from a final account to whichjthere were oppositions and upon which judgment was rendered after putting the heirs in possession of the succession property.
    y^PPLICATIOhF for Mandamus*

      B. R. Forman and O. Forman for the Relator:
    1. The Supreme Court of Louisiana has not, and therefore the Court of Appeals for the Parish of Orleans has jurisdiction of an appeal from a judgment of an executor’s account when the fund remaining to be distributed is less than $2000, and the oppositions are for less than that amount. Sue. Duran, 84 An. 585; Sue. McDowell, 35 An. 1025; Sue. Gobs, 37 An. 438.

      2. The foregoing is so, especially when the ease is one of a perfectly solvent estate in which no one has interest to oppose more than enough to meet his claim; and also when there are judgments unappealed from ordering the distribution of all the estate except enough to meet oppositions amounting to a capital of less than $2000. Sue. Gohs, 87 An. 428.

      Geo. H. Théard for the Respondents:
    The Supreme Court alone has jurisdiction of an appeal from a judgment disposing of oppositions to an executor’s account when the total of the estate or the fund to be distributed in the case exceeds $2000 exclusive of interest. Art. 81, Constitution of 1879; Brierre vs. Creditors, 43 An. 423.
   The opinion of the court was delivered by

McEnery, J.

This is an application for a writ of mandamus to compel the respondents to take jurisdiction and try the opposition to final account in the succession of Mrs. John Oarreau.

The estate is solvent.

The testamentary executors filed a provisional account showing the assets of the succession to be $54,674.75, and the liab'lities $3688.85. There are only two heirs. One approved the provisional account; the other, the relator, opposed it, except as to the claims of two creditors.

The account was homologated, and the funds ordered distributed in so far as not opposed.

The executors filed a second and final account, showing liabilities $1142.35. In this was included the sum of $1000 to be paid to Marie Annie Debat. This item the relator opposed, and abandoned his opposition to the other items opposed in the provisional account.

On the 20th of November, 1890, a judgment was rendered putting the heirs in possession of the whole of the estate with the exception of the amount required to pay the liabilities, which amount was ordered to be retained by the executors.

The oppositions to the provisional and the final account were tried together, and there was one judgment signed 1st .of June, 1891, dismissing the oppositions of relator, maintaining the opposition of the Oity of New Orleans for taxes for the years 1889, 1890, with interest and costs, and maintaining the opposition of Mercedes Wades for $257 and costs, and ordering the accounts as amended to be finally approved and homologated and that the funds be distributed accordingly.

Erom this judgment the relator appealed.

The executors had complied with the judgment homologating the provisional account, which is shown by the final account, exhibiting the liabilities of the succession at $1142.85, which includes an item of $1000 to be paid to Miss Marie Annie Debat which did not appear on the provisional account.

The whole succession having been placed by a judgment in the possession of the heirs, less the amount to pay liabilities to be left in the hands of the executors, this sum is the amount to be distributed and is the test of jurisdiction.

The amounts of the several oppositions which were recognized by the judgment homologating the account, added to the sum of $1142.35, give an amount less than $2000, below the lower limit of our jurisdiction. Sue. of Duran, 34 An. 585; Sue. of McDowell, 35 An. 1025; Sue. of Gohs, 37 An. 428.

It is therefore ordered and decreed that the rule granted herein be made absolute, and a peremptory mandamus issue as prayed for.


author: Nioholls, C. J.

text:
    No. 1259.
    John W. Mitchell vs. Dalton & Dalton.
    1. An order on an application for a respite that all proceedings of creditor* against the debtor be stayed is neither entirely nor partially revoked by the subsequent granting by the same judge of an attachment to a creditor who, pending the stay, and utterly ignoring it and the respite proceedings in hi* pleadings, brings a suit for his individual benefit.
    2. Allegations in the petition of the attaching creditor made at such time, under such circumstances, in such manner and for such a purpose, that the respite debtor is insolvent, and that he has or is about to defraud his creditors, do not bring the case under the principles announced in the case of Williams vs. Judge, *2 An. 72.
    3. An order for an attachment giv'en under such circumstances was improvidently granted, and on motion and exception the attachment should be dissolved and the suit itself dismissed.

      APPEAL from the Sixth District Court, Parish of Morehouse. Baird, J.
    D. M. Scholars for Plaintiff and Appellant:
    A creditor has a right to sue his debtor and to seize his property, notwithstanding an order staying proceedings. 42 An. 71; 1 O. M. 641; 1 M. (N. S.) 438, 240; 2 M. (N. S.) 329; 12 An. 182.
    “ The law considers as bankrupts those who have obtained a respite.” 2 N. S. 329; 3 R. 403, 410.
    “ A respite is a privilege granted to a debtor and always derogatory to the rights of creditors who are in the minority, by changing their contracts without consent on their part. Effect should not be given to it unless obtained under strict observance of law.” 3 M. (N. S ) 34S.
    A debtor who by some act has laid himself liable to attachment can not, by applying for a respite,, defeat a creditor in the exercise of this remedy.
    “ While the single fact of insolvency of a merchant is not ground for attachment, there certainly is nothing in the law or sound public policy to encourage insolvent men to conduct a commercial business, where it is obvious that such business can only be carried on at the expense of unsuspecting or victimized creditors.” Mack & Co. vs. McDaniel, 4 Fed. Rep. 294.

      Newton & Cason and Ellis & Hall for Defendants and Appellees:
    1. On an application for a respite, an order staying proceedings against persons and property is lawful and competent. 35 An., 801.
    2. An order staying proceedings against person and property operates as an extraordinary injunction, and is in every respect the equivalent of an injunction. 42 An. 72; 35 An. 802.
    The order absolutely precludes any one creditor from bringing a suit coupled with conservatory process for his own benefit against the applicant debtor, thereby giving an advantage over other creditors.
    The only object of conservatory process would be to secure the person or property of the applicant for the common good of all the creditors. 42 An. 72.
    3. After an order staying proceedings one creditor can not, without attacking the order directly or claiming conservatory process under proper allegations for the common benefit of all of the creditors, legally obtain an order for an attachment. Such an order is in direct contradiction of the order staying proceedings, and can not exist until the previous order has been vacated or set aside by direct action. 42 An. 71.
    The order can not be collaterally attacked. 35 An. 801; 42 An. 71.
    Judgment granting respite can not be collaterally attacked. Direct action absolutely necessary. 15 An. 19; 35 An. 915.
    4. An attachment or any seizure made before the judgment homologating the proceedings of the meeting of the creditors is necessarily set aside by such judgment. . 35 An. 801.
    Where the ord^r granting an attachment is null, the writ is without foundation and fails.
    The intent to defraud must exist to justify an attachment. 35 An. 339; 28 An. 818;. 30 An. 393. , ......

      Damages actually sustained comprise not only pecuniary loss and actual expenses incurred, such as costs and counsel’s fees, but also the mortification, annoyance and vexations caused to defendants by the attachment. 33 An. 6.
   The opinion of the court was delivered by

Nioholls, C. J.

An examination of the record.in this case shows that prior to the institution of the present suit by the plaintiff Mitchell, Dalton & Dalton the defendant firm had applied, through the District Court of Morehouse, for a respite from their creditors, and had obtained from that court a stay of all proceedings against them — that these proceedings for respite were pending at the time of the institution of this suit and that the stay of proceedings was then in full force — that the defendants had included the plaintiff Mitchell among their acknowledged creditors, for the full amount of his claim in the schedule of their liabilities filed in the respite proceedings, and that although up to the time that he took action in the present suit Mitchell had not participated in these proceedings, yet he had been duly notified of the same. It further shows that notwithstanding this condition of affairs the plaintiff filed the present suit, in which he prayed for personal judgment against the defendants for a large indebtedness which he alleged to be due to him by them, and accompanied his demand for a judgment by an application for a writ of attachment against their property in aid of his demand, based on an allegation that they were insolvent and that they had mortgaged, assigned and disposed of, or were about to mortgage, assign and dispose of their property, rights and credits or some parts thereof with intent to defraud their creditors or to give some of them an unfair preference — that they had converted or were about I o convert their property into money or evidences of debt with intent to place it beyond the reach of their creditors. It further shows that the pleadings in plaintiff’s petition made no reference whatsoever to the respite proceedings or the stay of proceedings, but utterly ignored the same; that the judge of the District Court ordered an attachment to issue as prayed for; that an attachment was issued, and that, under it property ot the defendants was attached and detained by the sheriff. It further shows that almost immediately after the suit was instituted the defendants, through their counsel, filed a motion, which they designated as a motion to dissolve and dismiss, in which they prayed for the dissolution of the attachment and the dismissal of the suit — that this motion was referred to the merits, and that thereafter the defendants filed an answer in which they reiterated the grounds for dissolution of the attachment and dismissal o f the suit which they had set up on their motion — reiterated the prayer of their motion and reconvened against the plaintiff, claiming damages against him for a large amount as damages resulting from the attachment; that the case was tried, evidence taken and a judgment rendered ; this judgment being for the plaintiff and against the defendants for the full amount of plaintiff’s claim, but dissolving the attachment sued out at plaintiff’s costs, and for the defendants and against the plaintiff for a portion of the amount claimed by them in their reconventionai demand as damages, but rejecting all the balance — that both parties have appealed from this judgment and that the defendants have filed in this court a motion for an amendment, praying that plaintiff’s suit be dismissed and that the judgment in their favor for damages should be increased.

From this recital it is evident that the differences between the plaintiff and the defendants which the court is called on to settle and determine, do not involve an examination of the question of the indebtedness of the defendants to the plaintiff. That indebtedness is admitted by the defendants not only in the pleadings in this case, but also admitted in the respite proceedings, as has been stated. The issues in the case spring from the institution of the present proceedings by the plaintiff and from the contention of the parties in respect to the consequences resulting from the same.

The first of these issues for decision in proper order is that raised in limine by the defendants in their motion to dissolve and dismiss —reiterated in their answer and still asserted, which is as to whether Mitchell (particularly as occupying the position he did of a creditor —recognized by them as such in their schedule of liabilities) could legally, during the pendency of the respite proceedings, and whilst the stay of proceedings granted was in full force, take out an attachment against defendants’ property in aid and support of his individual claim, and further, whether he could legally, under such circumstances, institute and prosecute against them an ordinary suit for a personal judgment, especially in the absence in his pleadings of any attack against the respite proceedings and the stay of proceedings, or any attack against themselves as having already used or as being about to use those proceedings, and the judges’ order therein made, as a cloak under which to injure or defraud their creditors.

We are of the opinion that the position taken on this subject by the defendants is correct, and that not only should the attachment have been dissolved, but that plaintiff’s suit should also have been dismissed as prayed for. Hummin vs. Jones, 2 N. S. 163. The order for attachment, although made by the same judge who had granted those in the respite proceedings, did not operate either as an entire or partial revocation of the latter as claimed by the plaintiff.

The allegations of the plaintiff in his petition that the defendants were insolvent and that they had defrauded, or were about to defraud, their creditors, made at the time, under the circumstances, in manner and for the purposes they were, did not warrant the course pursued in the matter by the plaintiff.

The case relied on of Abraham Williams, 42 An. 72, does not resemble the present.

The question there had reference to a direct action instituted by several creditors of a person who had obtained a stay of proceedings to annul and set aside the proceedings, and through conservatory process, to protect and hold, in statu quo, for the benefit of the mass of creditors, property which, under cover of the proceedings and orders, were being fraudulently disposed of to their prejudice by the applicant for the respite.

The present case is a demand brought by a single creditor on his individual claim asking judgment thereon and seeking to hold the property of the defendant by attachment and privilege for his own payment, passing by and utterly ignoring tjie respite proceedings and the judge’s, order for a stay. The dismissal of the suit and the dissolution of the attachment leave,, as the only matter for the further consideration of the court, the’judgment of the court below in respect to the defendant’s reconventional demand for damages.

We are satisfied from a careful examination of the evidence that in rendering judgment in favor of defendants against the plaintiff for the sum of $329.60 for attorney’s fees, and for $300 for damages to the stock of goods, the court below has done substantial justice between the parties, and that, in rejecting the claim of the defendants for further damages, there has been no error. For the reasons herein assigned, it is ordered, adjudged and decreed that the judgment of the court below in favor of the plaintiff, John W. Mitchell, and against the defendants, Dalton & Dalton, be and the same is hereby reversed and annulled, and that plaintiff’s suit be and the same is hereby dismissed, and that in other respects the judgment below be and the same is hereby affirmed at plaintff’s costs.


author: Eenner. J.

text:
    No. 1254.
    Robert McNamara vs. Board of Commissioners of the Tensas Basin Levee District.
    A claim for damages for alleged breaches of contract and delays in execution can not be urged when the party has proceeded in the execution of the contract in the manner adopted without complaint or protest, or any notice of objection when he has completed the work and received settlement without complaint or reserve, and when he has himself acknowledged that defendant had fully complied with all its obligations.
    APPEAL from the Twenty-seventh, District Court, Parish of Rich-land. Williams, J.

      H. P. Wells for Defendant and Appellee.

      Moise & Titche and Boatner & Lamkin for Plaintiff and Appellant:
    Where a contractor is to build a certain levee according to certain plans and specifications, etc., to be furnished by a levee board, and the latter negligently delays furnishing said specifications, etc., and loss results, the levee board is liable therefor. Philadelphia, etc., Railroad Co. vs. Howai-d; 13 How. 307.
    Where a contract is completed after the time stipulated for its performance, and the work done is accepted, the party accepting must pay for same. 13 How. 307.

      L party receiving a contract to do certain work, which work is afterward awarded to a third person, is entitled to recover the profits he would have made had he been permitted to complete the contract.

      “ Where the obligation of one party to a contract requires of him the expenditure of a large sum in preparation to perform, and a continuous readiness to perform, the law implies a corresponding obligation on the other party to do what is necessary to enable the first to comply with his agreement.” U. S. vs. Speed • 8 Wall- 77; U. S. vs. Behan, 110 U. S. Rep. 338.
   The opinion of the court was delivered by

Eenner. J.

On August 81, 1887, the defendant advertised for proposals to build “Fulton Lake lévee in Désha and Chiccít counties, Arkansas.” No further description of the work’waif given, but the advertisement stated that “information as to location and character of the work may he obtained at the office of Oapt. Wm. T. Rossell, Oorps of Engineers, U. S. A., No. 106 Madison street, Memphis, Tenn., and at the office of the Board of State Engineers of Louisiana, New Orleans, La.”

The record fails to disclose whether or not plaintiff resorted to this source of information before he made his bid; but it does appear that a plan of the proposed levee had been made and was on file at the offices of the engineers referred to.

However this may be, plaintiff made a bid at 18% cents per yard, which was accepted, and he then entered into a contract with defendant which made no reference to the plan above mentioned or to any other plan, and which prescribed neither location, length nor dimensions of the levee nor any specification as to quantity of work, but which simply nominated it as “the levee located and described as follows, viz.: the basin front on the Mississippi river, in the counties of Desha and Ghicot, Ark., according to the plans, specifications and dimensions to be prescribed by the United States Engineer in charge of work on the Tensas front and approved by the State Engineer of Louisiana.”

The contract contained the following further provisions, to-wit: that “the work shall be done under the direction and supervision of the engineer in charge, whose directions shall be complied with;” that “the contractors engage and agree to conform to the mode and order of constructing and locating the parts of the work as it progresses, which the engineer in charge may indicate; ” and, finally, that “should the engineer in charge deem any changes necessary in the extent and location of the levee, or in the quanity of the work required, such changes shall be made by the contractors, at the same rate of compensation as herein stipulated, and should differences arise between the contractors and engineer in charge, the decision of the Board of State Engineers of the State of Louisiana shall be final and binding on the parties.”

It thus conclusively appears that plaintiff’s contract was not for the construction of a specific levee already planned and located, but of a levee to be thereafter planned and located by the United States engineers in charge, and subject, even then, to any changes in extent or location which the engineers might deem necessary, without affecting the rate of compensation; and that the only relief which he could claim in case of objection to such changes was by appeal to the State Board of Engineers, which was made the final arbiter between the parties.

That the plaintiff acted rashly and improvidefitly in entering into so loose a contract can not be denied; but as he bound himself, so must he be bound.

After the contract, he went, for the first time, to the loeus of the work, and after inspection he discovered that it could not be done at rate agreed upon. He thereupon declined to proceed unless the Levee Board would increase it to 25 cents per cubic yard, which the board agreed to do.

The line which had been provisionally laid out for the levee by the engineers seems to have been conditioned upon success in arranging-with a railroad company in that region to close up with earth the trestles under its track, without which the levee as proposed would be useless and ineffective. The negotiations with the railroad company were still pending when plaintiff was ready to begin work, and hence he was detained for some time in beginning. The negotiations finally failed, and it became necessary to run the levee acrossEulton Lake along a different line from that at first contemplated.

Plaintiff submitted to this delay and change of location without any complaint or protest to the defendant. As soon as the new line was laid out he proceeded with the work under his contract. The rainy season came on and filled the lake with water, which added greatly to the difficulty and expense of his work, but he still went on without complaint or protest to defendant. A break occurred on the front levee of the river which threatened destruction to his work and the engineer advised him to avert it by building a loop. He did so without protest and without setting up any claim on defendant.

A part of the work which had been originally assigned to him was taken away and given to another contractor.

He submitted to this without complaint or protest.

He finally completed his work, received certificates according to-his contract and was settled with by the defendant, without a word of complaint or claim of any extra compensation.

Even after this he presented a petition to the defendant board, in which he represented the heavy losses he had sustained, “caused by circumstances which no man could either foresee or prevent,” and he appealed to the board for some relief. This petition contains not even a suggestion of any legal claim, and not a word of any charge against the defendant.

Both the secretary and the president of the board testify that “ Mr. McNamara stated at the time that the board had treated him very nicely in raising the contract price from 18 7-8 to 25 cents per cubic yard, and that he did not claim that the board had not paid him every cent to which he was justly entitled under his contract.”

It is significant that although plaintiff was recalled to the stand immediately after the above testimony was given, he does not explain or contradict it.

Only in September, 1890, about one year and a half after he had completed and been paid for his work, does he bring this suit, claiming from defendant the enormous sum of $64,538, as damages for alleged breaches of his contract.

It is evident that plaintiff, during the progress of the work, placed the same construction on his contract which was adopted by the defendant, and concedes the right of the United States engineers to change the location and extent of the levee. If he objected, his remedy was pointed out in the contract — to appeal to the State Board of Engineers, which he did not do.

If he intended to hold defendant liable for the delays to which he was subjected, he was bound to protest seasonably and to notify defendant of his complaint, which it might then have remedied by hastening the engineers.

If he intended to claim damages for the taking away of part of his work and assigning it to another contractor, he should have objected at the time and notified defendant, which might then have abstained from the transfer.

Similar remarks apply to all the items of damage claimed.

Justice forbids that, after having remained silent when he should have spoken, after leaving the defendant in ignorance of any complaint or charge of any kind against it during the whole time during which the complaints might have been obviated or satisfied, after having accepted settlement according to his contract without objection or reservo, after having acknowledged that defendant had fully executed all its obligations, and after appealing to its liberality to recoup his losses, for which he admitted he had no legal claim, he should be permitted to take a position entirely inconsistent with his whole conduct and urge this ruinous claim for damages.

The judge a quo rightly rejected his demand.

Judgment affirmed.


author: Watkins. J.

text:
    No. 1287.
    C. A. Bryan et al. vs. Edward Wisner.
    1, In case the description of land in a sheriff’s proces verbal and deed of sale is by legal subdivisions and also by the ancient name of the plantation, its situation with reference to a natural water course, its contiguity to other properties of adjacent proprietors and the aggregate quantity of land conveyed, the quantity will not be alone determined by the legal subdivisions, but by the entire description, as indicating the true intention of the parties.
    2, If the description given of a tract of land taken as a whole informs the public what property is covered by it without stating the township or other legal subdivisions, it will be sufficient — as, for instance, where it is described as being on a particular stream in a designated parish adjoining certain named properties, or upon the stream upon which it is situated within the parish designated, with the number of acres it contains and reference made to the conveyance by which the vendor acquired it.
    8. If a portion of the description would mislead, it must be read with and eon trolled by other parts, which explain it; and an error in a description by legal subdivisions’may be cured by other descriptive designations of the property in the conveyance, which leave no doubt of the particular tract that was intended to be sold.
    APPEAL from the Twenty-seventh District Court, Parish of Rich land. Williams, J.

      Elam & Dagg for Plaintiffs and Appellants.
    O. L. Berry and H. P. Wells for Defendant and Appellee.
   The opinion of the court was delivered by

Watkins. J.

The object of this action is to compel defendant to accept title to a valuable plantation and comply with the terms of a proposed sale thereof.

The averment of plaintiffs’ petition is that on the 21st of April, 1891, they prepared and submitted to the defendant a written proposition for the sale of the tract of land known as the Hope estate, more particularly described by legal subdivisions, containing 4628 acres, more or less — including, also, the working cattle and plantation stock, farming implements and standing crops — for and in consideration of the sum and price of $29,000. That on the 27th of the same month and year said proposition was accepted by the defendant, but he has since wholly failed and refused to comply therewith and perform his part of the contract, notwithstanding a formal title has been seasonably tendered him.

The prayer is that the defendant be required to accept title and pay the price mentioned; and that the judgment so rendered be made executory against the property, and their vendor’s privilege thereon be recognized and enforced.

Plaintiffs make claim, also, for the sum of $1885 as the amount of necessary expenditures made by them in the cultivation and preparation for market of the crops on the plantation during the year 1891, after the date of said agreement of sale, and for the institution of which they aver the defendant to be responsible to them.

They allege their acquisition of the Hope estate plantation at .sheriff’s sale made in executory proceedings in the foreclosure of a special mortgage, conducted against John Hartington and John C. Adams, agents, under which they entered into immediate possession as owners, and have since remained, and on which they base the prescription of five and ten years, as a muniment of title, good against any demands or-counter-claims of their authors.

The defendant admits his acceptance of the plaintiffs’ proprosition, but assigns that it is a nudum pactum, because there was no consideration paid, and consequently plaintiffs’ petition discloses no cause of action. Incorporated in the answer is the further allegation that since his acceptance of plaintiffs’ proposition, he |has discovered that plaintiffs have no title to the Hope estate plantation, to the extent of 1480 acres, situated near the centre of the plantation, and embracing the most valuable portion thereof — being of the improved and cultivated portion, and without which he would not have accepted the- proposition of the plaintiffs at all.

He avers that plaintiffs derive title from the heirs of William Blount, by means of the executory proceedings above mentioned, which are founded upon an act of mortgage executed by the two aforesaid agents on the 6th of November, 1875, in favor of one John P. Mortimer, Jr., to secure the payment of about $5000, and that therein said 1480 acres of land is neither mentioned nor described, and hence the plaintiffs derived no title thereto.

On the trial there was a general judgment rendered in favor of the defendant, rejecting the plaintiffs’ demands, and they have appealed.

No disposition was, apparently, made of the defendant’s exception of no cause of action, and, as it was based on the consideration of the merits of plaintiffs’ proposition to make sale, and not on the lack of sufficient averment in the plaintiffs’ petition, it is evident that the exception was groundless, as such, and was properly considered part of the defendant’s answer.

On the main question the facts appear to be as follows, viz.:

On the 26th of April, 1891, O. A. Brown and George S. Kausler submitted a written proposition to the defendant for the sale of “the tract of land known as the Hope Estate plantation, located in Franklin parish, Louisiana, including all stock, tools and improvements, together with their interest in the crop of Í891, and all supplies on hand — for the sum of |29,000,” etc.

On the following day that proposition was, by the defendant, accepted in writing.

The title of the plaintiffs was derived under a sheriff’s deed of sale, bearing date December 1, 1877, executed in favor of O. A. Bryan and George A. Kausler, as adjudicatees, under and by virtue of certain executory proceedings conducted against John Hartington and John O. Adams, agents of the heirs of William Blount, in the foreclosure of a special mortgage which had been theretofore executed by said agents on the 6th of November, 1876.

Reference to the power of attorney under the authority of which they acted discloses that the property designated is described as the estate owned by them” — the heirs of William Blount — “ in the State of Louisiana, called the Hope Estate plantation, situate in the parish of Franklin, said State,” etc., without the designation of any legal subdivisions.

In the act of mortgage in favor of John P. Mortimer, the property is described as “ the Hope Estate plantation, situated in the parishes of Franklin and Catahoula, Louisiana, containing 4397 acres, more or less, being on the waters of Deer Creek, and adjoining the lands of Ohauneey Lewis, (the) heirs of Chandler Lewis, and of Mason R. Howe — that portion of said plantation lying and being situated in said parish of Franklin aforesaid (is) described as follows, viz.

* * * then follows the description by legal subdivisions, coupled with the concluding statement “ containing in the aggregate 3900 acres, more or less.”

The order of seizure and sale describes the property as “ the Hope Estate plantation, situated in Franklin and Oatahoula parishes, and fully described in the act of mortgage.”

The writ of seizure and sale describes it as “the Hope Estate plantation, situated in the parishes of Franklin and Oatahoula * * - * containing 4397 acres, more or less, on the waters of Deer Greek, and adjoining the lands of Ohauncey Lewis, of Ohandler Lewis’ heirs, and Moson R. Howe- — that portion of said plantation lying and being situated in Franklin parish” (being described as follows) * * “ containing in the aggregate 3900 acres, more or less,” etc.

The description contained in the act of sale to the plaintiffs is precisely the same as that contained in the writ of seizure and sale, with the exception of a slight alteration having been made in the concluding clause, making it read thus, viz.: “ containing in the aggregate 3900 acres, more or less, in the parish of Franklin, and 497 in the parish of Oatahoula,” etc.

It thus appears that, notwithstanding the proposition of sale designates the property offered for sale as “ the tract of land known as the Hope Estate plantation, located in Franklin parish,” and it is likewise designated in the mandate of Harrington and Adams; yet they mortgaged to Mortimer “ the Hope Estate plantation, situated in the parishes of Franklin and Oatahoula, containing 4397 acres, more or less;” and it is thus described in the order of seizure and sale, in the writ of seizure and sale, and in the sheriff’s deed of sale.

There is no complaint made in the defendant’s answer that the plaintiffs did not acquire, at the execution sale, that portion of the Hope Estate plantation that is situated in the parish of Oatahoula, on the ground either that it was neither covered by the mandate of Harrington and Adams nor included in the plaintiffs’ proposition; but their objection, on the contrary, is that there is a deficiency of 1480 acres of land, -situated near the centre of the plantation, and embracing the most valuable portion of the land in cultivation, and without which he would not have accepted the plaintiffs’ proposition. Therefore we may safely assume that all parties perfectly understood the plaintiffs’ offer, and the defendant’s acceptance, to have been, on the one hand to sell, and on the other to buy the Hope Estate plantation, situated in both Franklin and Catahoula parishes, though only the name of Franklin parish was specially mentioned. In the light of this assumption the phrase in the act of mortgage to - wit: “ that portion of said plantation lying and being situated in said parish of Franklin, aforesaid, is described as follows * * * and contains in the aggregate 3900 acres, more or less” — must be taken as the measure of the land situated in that parish, and not as restricting the total amount of property mortgaged. And the same is true of the like phraseology in the sheriff’s deed of sale to the plaintiffs.

From the foregoing, the further argument is easily deduced, that it was the Hope Estate plantation, without special reference to parish lines, that constituted the object of the agreement of the parties.

In this light the defendant’s objection to the tendered title appears to be, not that the Hope Estate plantation did not really and actually contain the 1480 acres of land which are alleged not to be included in plaintiffs’ title; not that the heirs of William Blount were not the owners, originally, of the missing land — but that the mortgage to Mortimer, and the sale to plaintiffs, did not cover it, and hence the title of the heirs of Blount was never divested.

The defendant’s complaint is of the incorrectness of the description of the property by legal subdivisions whereby the diminution in quantity is occasioned.

To illustrate — the description of the property by legal subdivisions, in the act of mortgage, begins in this wise, viz.:

“South half of section twenty (20), township twelve (12) . range eight (8), containing 640 acres;” whereas, the south half of a section is only 320 acres, ordinarily, or 640 acres can not be contained in a half section.

Again: “North west half of section twenty-one (21), township twelve (12), range eight (8), containing 168 66-100 acres,” occurs; whereas, the north west half is an impossible description, and the west half of section twenty-one (21) must have been intended by the parties.

If these two matters of description be so altered as to conform to the manifest intention of the agents in the execution of the act of mortgage, and that of the sheriff in the execution of his deed of sale to the plaintiffs, the amount of the alleged deficit in quantity would he diminished by 480 acres.

All other deficiencies are of like character, and may be similarly accounted for. Hence the question arises as to whether this deficit in the quantity constitutes an irremediable defect, which impairs the title of the plaintiffs, or is an error that is curable on adequate proof being administered.

We are clearly of the opinion that it is of the latter and not of the former class.

That this is the correct view is perfectly attested by the plaintiffs’ proposition to sell the defendant, not 4397 acres of land described and delineated by certain legal subdivisions, but “the tract of land known as the Hope Estate plantation, located in Franklin parish.” It is further attested by the defendant’s acceptance of that proposition, containing no other description.

The act of mortgage further identifies the land by the statement that it is situated on the waters of Deer Creek, and adjoining the lands of Chauncey Lewis, (the) heirs of Chandler Lewis and Mason R. Howe.

That is not in the nature of a sale per aversioneni, inasmuch as the description merely indicates the situation, without giving the specific boundaries of the property sold, but it is the specification of the locality, with reference to natural landmarks and the ancient name of the plantation, together with the number of superficial acres it contains.

By such a description the title of the property undoubtedly passed to the purchasers notwithstanding the legal subdivisions — which were superadded — incorrectly descjibed the quantity for land conveyed

This interpretation is manifestly correct, and reasonable when applied to this particular case; and it so appears from a casual inspection of the various records referred to in this opinion.

The description of nearly five thousand acres of rural property, by legal subdivisions, is a very difficult matter, if done with perfect accuracy; and particularly when the initial letters are employed, as in this instance, in lieu of complete words of description, is the difficulty increased.

In this case the description was repeated in the act of mortgage, the order of seizure, the writ of seizure and sale, the advertisement and proees verbal of sale; and if the pain of nullity of the sale attaches, because of an inaccuracy of the description by legal subdivisions and constitutes it an incurable defect, otherwise than by the repetition of the entire proceedings, judicial sales of such property would become extra hazardous, and operate as snares for the unwary.

In such case parties in interest have been ever accorded the privi - lege of administering proof of the correct description of the property conveyed, and of fixing and establishing the limits and measurement, conformably to the facts.

In Thornhill vs. Burthe, 29 An. 639, a controversy arose and was decided between two mortgagees, holding mortgages of different rank, and the question turned upon the interpretation to be placed upon the designation of the range, in a description by legal subdivisions, and the court said:

“The land is described by numbers of sections, township and range, and correctly, except the last; and also by the number of acres; and the further recital is made that the notes secured by the mortgage represent the original purchase price of the landboughtby Olialeron from Brown, and the act of sale yet further designates the land by reference to the title of Brown from his vendor, the date of which is given. There could be no mistake as to the tract of land, its location, or boundaries, and there is no pretence that the plaintiffs were misled. The description in the acts sufficiently identifies it, etc. * * * If the description of a tract of land in an act of mortgage informs the public what property is covered by it, without stating the township, or other divisions, it will be sufficient; as for example, where it is described as being on a particular river in a named parish adjoining named properties; or the bayou upon which it is situated is named, with the parish, the number of acres it contains, and reference is made to the conveyance by which the mortgagor acquired it.”

That particular question arises in this case, and we take that decision to be perfectly correct; and it is founded upon two preceding cases that are cited in the opinion, viz.: The Consolidated Association of Planters vs. Mason, 24 An. 518, and Ells vs. Sims, 2 An. 251.

As the query in this last was propounded so may it be propounded here. Would any one treating with the plaintiffs in regard to the Hope Estate plantation have been misled or kept in the dark by the omission to accurately state the township, range and section in which the land is situated.” We think not.

And the court, applying that principle, said: “It has been said that a distinction may well be taken between urban and rural estates in the minuteness and particularity of detail requisite for a proper and sufficient description of them, a greater accuracy being required for the former than the latter. Bank vs. Barrow, 7 R. 39. And if a part of the description would mislead, it must be read with and controlled by other parts which explain it. Marcotte vs. Coco, 12 R. 167. The error in number of range, in the description in defendant’s mortgage, was cured by other descriptive parts thereof, which left no doubt of the particular tract that was intended to be mortgaged.” 2 An. 371; 12 An. 148; 21 An. 396; 2 An. 799.

The conclusion of the court in that case is peculiarly applicable to the instant controversy, inasmuch as the property mortgaged and sold is designated as the Hope Estate plantation, of which the heirs of Blount were then owners; it is described as being situated on the waters of Deer Creek in the parishes of Franklin and Catahoula, State of Louisiana; it is mentioned as adjoining the propertiesof designated estates and proprietors; and the total number of superficial acres that is contained in the whole tract is specified, as well as the number that is contained in each of two the parishes, respectively. To these indicia of description is superadded the legal subdivisions of the land.

In our opinion the descriptions in the mortgage and sheriff’s sale completely fulfil all the requirements of the decisions referred to.

In a more recent case, decided by the present court — Dickson vs. Dickson, 36 An. 87(1 — quite a similar question arose, and, in the course of its opinion, the court said:

“From a reading of the above description it seems to us that it was clearly the meaning and intention of the contracting parties that the' property to be mortgaged was the Rush Point plantation. This is the necessary inference from the words, ‘the said property being the Rush Point plantation.’ If the language of the act makes it clear that it was the Rush Point plantation that was mortgaged, then the numbers, or legal subdivisions named in the act, become secondary, or merely descriptive of the subject of the contract' — the thing mortgaged. It would be a bold proposition for either party to the contract to assert that the Rush Point plantation was not the subject of the mortgage, and one which would not be listened to; but to say that the numbers cited as composing the plantation did nob, in fact, compose it, would not be strange, but be viewed as a misdescription of the property, which, as is well known, is of frequent occurrence in contracts of this kind.”

And such is our clear conviction in this case; and it conforms to prior adjudications on the subject. Flemming & Baldwin vs. Watson, 26 An. 545; 2 La. 3; 4 An. 441; 9 An. 29; 15 La. 311.

But the further objection is urged that in this suit the question of error vel non can not be examined and determined because the original mortgagors, the heirs of William Blount, are not made parties, plaintiff or defendant, and that, hence, they would not be bound by the judgment pronounced, and their title in the deficiency of land could not be thereby divested.

On the hypothesis that the alleged deficiency is only the result of a simple misdescription in the legal subdivisions given in the deed, and not an incurable defect, that objection is readily answered in two ways: (1) that by the piaintiffs’ monition proceedings and judgment homologating the sheriff’s sale,-on the 3d of December, 1878, all persons interested in the property, or who were entitled to set up any claim or interest in it; or assert any irregularities or informalities in the proceedings; or any error in the description of the property sold, were concluded and perpetually barred from the subsequent assertion thereof; (2) that by plaintiffs’ pleas of five and ten years’ prescription, predicated upon the order of seizure and sale, and the sheriff’s adjudication thereunder, and their peaceable and undisturbed possession of same, the former owners are barred and precluded from urging any adverse pretensions they may have had.

In Pattison vs. Malony, 38 An. 885—a case precisely similar to this — this court gave force and effect to the prescription of ten years, as a muniment of the title tendered to a purchaser, and compelled the defendant’s' acceptance of it.

On the score of the plaintiffs’ demand for the reimbursement of sums advanced upon the crops of 1891, as an element of their proposition of sale, as well as on that of their demand for judgment for the price of sale, we think it is premature. Those are merely incidental questions that may or may not arise hereafter. The only question we are called upon now to decide is the enforceability of the plaintiffs’ proposition. This is, strictly speaking, a suit to compel specific performance of a contract for the sale of real estate, the payment of the price of which is one of the conditions precedent. R. O. O. 2439.

The defendant’s obligation to pay the price can not be assimilated to the alternative obligation to respond in damages for the nonfulfilment of a contract, as contemplated in R. O. O. 1297.

This demand should be rejected as of non-suit.

It is therefore ordered and decreed that the judgment appealed from be annulled and reversed; and it is further ordered and decreed that there be judgment recognizing and enforcing the plaintiffs’ proposition of sale to the defendant, and compelling his compliance therewith, according to its terms and tenor; and that the defendant be taxed with all the costs of both courts.