author: Fenner, J.

text:
    No. 1393.
    The State of Louisiana vs. Bernard Glaudi.
    1. The terms "grand or petit juror ” employed in Act :í!) oí 1878 embraces talen jurors, lawfully selected and summoned, as well as regular jurors.
    2. The rule that penal statutes are to be strictly construed is not to be applied with such unreasonable technicality as to defeat the purpose of all rules of statutory construction, which purpose is to ascertain and. enforce the true meaning and intent of the statute.

      3. Act 59 of 1S7S is not confined to bribing or attempting to bribe jurors actually impanelled and sworn to try a particular case, but applies to all jurors who have been lawfully selected and summoned to act as such.

      i. Ail information charging an attempt to bribe a juror, in tlie language of the statute, specifying the particular juror, and the nature of the bribe offered, and setting forth tlio unlawful intent, conforms to all requirements of criminal pleading.
    APPEAL from the Criminal District Court for the Parish of Orleans. Marr, J.

    Same Counsel for the State as in the preceding case.

      Louis J. Paquet for Defendant and Appellant:
   The opinion of the court was delivered by

Fenner, J.

This appeal presents the same points which have been considered and disposed of by our decision just announced in the case of the State vs. MeChrystol.

The matters complained of, relative to the refusal of the motion for new trial, concern the sufficiency of the evidence in the case, and afford no ground for our interference.

Judgment affirmed.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 1395.
    The State of Louisiana vs. Will Frazier.
    In case an application for continuance is refused, counsel for applicant should raise objection to tlie judge’s ruling, and cause a bill of exceptions thereto to be signed and filed in the record, otherwise same will be of no avail.
    APPEAL from the Eleventh District Court, Parish of Natchitoches. Pierson, J.

      D. O. Scarborough and John N. Ogden, District Attorney, for the State, Appellee.

      M. B. Taiozin and N. T. Smith for Defendant and Appellant:
    “ The constitutional provisions wliicb guarantee to an accused the right to compulsory process is not a dead letter, and must be enforced. Under a proper showing for a continuance, on the ground of the absence of a material witness, the trial must be postponed.” 40 An. 74.1.
    “ Kvery person accused shall be permitted to establish his defence by anj- lawful evidence, and shall have the same process as the State to compel the attendance of witnesses.” It. S., Sec. 002.
    “In all criminal prosecutions in which the punishment to be inflicted maybe death or imprisonment at hard labor in the penitentiary, witnesses maybe compelled to attend the sessions of the court from any parish of the State.” It. S. 108(5.
    “It shall be the duty of the sheriff of the parish in which the witness resides to serve the subpoenas, and mala’ due returns thereof, without delay.” It. S. 1087.
    “Under a showing that an accused in a case pending in New Orleans, when witnesses do not live a great distance from the court, took necessary steps to summon his witnesses within three days of the notice of trial, is prima facie proof of his diligence. Under such a showing, the absence of a witness residing in said city, but temporarily absent therefrom, whoso attendance the accused had sought to secure by moving for necessary process to he served in the parish whore the witness is supposed to be at the time, such steps taken, seven days before trial, will entitle the accused to a continuance of his case.” 87_An. 8(58.
    “If the affidavit swears that the witness is material, it is not required he should swear to his competency.” 87 An. 812.
   The opinion of the conrt was delivered by

Watkins, J.

The defendant appeals from a conviction of the crime of horse stealing, and sentence to four years’ imprisonment at hard labor in the State penitentiary, relying on an assignment of error, that he was refused a continuance for the purpose of obtaining the attendance and testimony of an absent witness, was-alleged to have been competent and material to the issue.

The record shows that the accused defendant made affidavit on the 5th of June, 1891, that one Peter Frazier, of the parish of Ascension, was a material and important witness to be heard in his behalf, and without whose testimony he could not safely go to trial — giving a synoptical statement of same — and thereupon the trial judge made an order directing a summons to issue for said witness’ appearance. That on the 13th instant following, the case was called for trial — the same having been fixed for trial on that date — bub the defendant objected to going to trial, assigning as his reason the absence of said witness, and, being constrained thereto, made an affidavit for a contimiance in the prescribed form, reciting the foregoing facts, substantially, coupled with an averment of his having used due dilligence to obtain his attendance. That no' return of the subpoena that had been issued for said witness had been returned by the sheriff of Ascension to the clerk of the trial court.

But it fails to show what the ruling of the trial judge was, or the ground upon which he declined to grant the continuance — no bill of exceptions having been filed on his behalf.

In this state of affairs there is nothing we can take hold of in the record, whereby to examine and determine the defendant’s charge of error. Surely there is nothing on the face of the record itself to. indicate any such error as the one the defendant complains of; and the judge may have had good and sufficient reasons for declining to-grant the desired continuance, notwithstanding the defendant’s affidavit.

His counsel should have retained a bill of exceptions to the judge’s, ruling, and caused him to state his reasons for refusing a continuance. Such a bill, when duly signed and filed in the record, would have placed it in our power to judge of its correctness, and to give defendant relief if the judge’s ruling was found erroneous and prejudicial to his interest. An assignment of error can not subserve the purpose. At most, it can point out errors which a simple inspection of the record would have disclosed. Those non-apparent must be brought to our attention by bills of exception.

The objections and assignment of the defendant are unavailing.

Had counsel for the accused prepared and had signed, and filed a proper bill of exceptions, he might have brought his ease within the principle announced in State vs. Butler, 42 An. 405.

Judgment affirmed.


author: Bermudez, C. J.

text:
    No. 1416.
    The State vs. Henry Jenkins.
    A verdict of guilty inadvertently written on a quashed indictment instead of being so on tlie real indictment, on which the prosecution is based and carried on, is not on that account a nullity. It is not sacramental that it be written, or, when written, that it be signed or put on the indictment.
    It is surely of equal, if not superior dignity, to a verdict rendered ore tenus, or un • signed, in open court by the jury

      APPEAL from the Twenty-second District Court, Parish of Ascension. Duffel, J.

      R. MeCulloh and John N. Ogden, District Attorney, for the State, Appellee.

      E. N. Pugh for Defendant and Appellant.
   The opinion of the court was delivered by

Bermudez, C. J.

The defendant was sentenced to hard labor for life on a presentation and conviction for murder.

On appeal, he complains that the grand jury who found the indictment against him was not a legal body, urging against its action the same objections which were pressed, on a motion to quash, in the cases of the State vs. Causey, and against Woodson, just decided.

The only difference between this case and those, and which is not a factor in this complaint, is, that on the objections raised by this defendant to the first indictment against him, that one of the panel was an alien, that indictment was quashed, and subsequently another was found against him by the remaining fifteen jurors, on which the prosecution was based. His objections, therefore, are not now to the first, but to the last indictment presented against him.

For the reasons assigned in the opinion in State vs. Causey, we hold that the motion to quash was properly overruled.

The next complaint is, that the qualified verdict of the jury against him was written on the first indictment, which had been quashed, and not on the second indictment, which was that on which the prosecution rested and on which the verdict should have been reduced to writing.

The verdict returned reads: “ Donaldsonville, La., May 18, 1891. Guilty, without capital punishment.” [Signed] “ J. W. Inness, foreman.”

It is elementary that a verdict may be validly rendered orally, in open court, even when no foreman was appointed, when it is returned written though unsigned, either by the foreman or any member of the jury, or does not contain the name of the accused, or describe the offence charged. 8 R. 525; 30 An, 434; 33 An. 1416; 34 An. 370; 37 An. 569. Manning Unreported Cases, p. 258.

It does seem to be an evident proposition, that, where a verdict is written on a paper which contains the title of the case, a statement of the nature of the crime charged, and which is a perfect duplicate -of the indictment in the case, it is valid, the more so when the verdict on such paper is, as was done here, read in open court, in the presence of all — the accused, the State and the jurors.

The second indictment found was not handed to the jury, by some mistake or other. This explains why the verdict was written as it was. The foreman presumed it was the proper indictment, and in■advertently committed the error. Writing a verdict on the real indictment is not an essential requirement for its validity. It is not sacramental that it be so. We know of no rulings sustaining objections of this character, and having been referred to none, infer that none exists.

The verdict thus written is surely of a dignity equal, not to say much superior, to onerendered viva voce, or unsigned, in open court, by a jury.

Judgment affirmed.


text:
    No. 1406.
    The State of Louisiana vs. James Washington.
    In caso a party is charged with burglary and larceny, in one court, and is tried and found guilty as charged, and thereafter flies a motion for a new trial on the sole ground that the proof adduced was insufUeient to sustain the indictment for burglary: Held, that, at this stage of- the proceedings, it was competent and admissible for the District Attorney to enter a nolle prosequi as to the charge of burglary and prevent a new trial being- granted.
    A PPEAL from the Pierson, J. Eleventh District Court, Parish of Natchitoches.
    D. O. Scarborough and John A. Ogden, District Attorney for the .State, Appellee.

      Owmingham & Tucker for Defendant and Appellant.
   The]opinion of the court was delivered by

Watkins, J.

The a'ccused was 'indicted, tried and convicted of the crimes of burglary and larceny, and he thereupon filed a motion for a new trial. Pending the trial of this motion, the District Attorney entered a nolle prosequi as to the charge of burglary, and the trial judge overruled the same, and sentenced him to two years’ imprisonment at hard labor in the State penitentiary, and he has appealed.

For a reversal of the sentence and judgment appealed from, defendant relies exclusively upon his assignment of two errors in this court: (1) that his affidavit for a continuance, to procure the attendance and testimony of an absent witness, was arbitarily and illegally refused; (2) that the District Attorney’s nolle prosequi was illegally entertained and allowed.

I.

To the trial judge’s declination and refusal to grant the defendant a continuance, the defendant’s counsel retained no bill of exceptions, and his mere assignment of a matter of fact as a relievable error is without efficacy. See State vs. Frazier, No. 1395, on the docket just decided.

II.

The motion for new trial recites that the verdict was contrary to law and evidence, in that the only evidence against the accused was the presumption of guilt, arising from the possession of the stolen property, and that it was wholly insufficient and without effect to sustain the charge of burglary. It did not aver that such proof was insufficient to sustain the charge of larceny. But his counsel’s contention is, that inasmuch as- the crimes of burglary and larceny are charged against the defendant, conjunctively, in one count, the allowance of a new trial necessarily and unavoidably results, if the premises be conceded, viz., that burglary was not proven, because the verdict, like the indictment, is one and indivisible.

But the motion for new trial does not involve the structure of the indictment; only the correctness of the verdict found under t. The nolle prosequi does go to the validity of the indictment, and was intended to cure the defectiveness of the' verdict, in the identical particulars complained of in the defendant’s motion.

Now, it is not alleged that the indictment was originally defective, in that it preferred against the defendant both the charges of burglary and larceny in one count; nor is it claimed that it was beyond the competency of the District Attorney to have entered, before trial, a nolle prosequi of either, and gone to trial on the one remaining at issue. And it is not easily perceived how the status of the indictment has been changed by a non-consummated verdict, the finality of which has been suspended by the defendant’s motion. Had the motion been granted and a new trial awarded, the accused would accomplish nothing additional in the way of relief which the nolle prosequi has not already conferred.

This question being one of law, a bill of exceptions was not required to bring it up for review.

Judgment affirmed.


text:
    No. 1394.
    Cleophas Broussard vs. Amelina Broussard.
    A certificate of entx-y issxiecl iinder tlxe United States Homestead Law vests in the holder a sufficient title to support a petitory action.
    Where, in a petitoi-y action between a pai-ty claiming- land under a certificate of entry and another claiming title under a patent from the State, final judgment is rendered in favor of the latter and against the former, such judgment will be res judicata against another action to recover the same land under a United States patent subsequently issued based on the same certificate of entx-y, when the parties to the suit arc the same.
    APPEAL from the Twenty- fifth JDistrict Court, Parish of Vermilion. Mouton, J.

      II. C. Castellanos for Plaintiff and Appellant.

      White <&.Broussard for Defendant and Appellee:
    1. Title is vested by a certificate of entry, and under such certificate the land enters fully into the domain of private property, and becomes subject to contracts; and such certificate is sufficient evidence of title to support a petitory action. 35 An. 931; 4 X. S. 260; 10B. 159; 11 B. 321; -19B. 334; 4 An. 262; 5 An. 197; 9 An. 137; 13 Peters, 436; 8 Howard, 461.
    2. Where a judgment is rendered against a party claiming land under a certificate of entry, such judgment will constitute res culjudieata, and bar another action to recover the same land under a patent subsequently issued based on said entry, when the parties to the suit are the same, or legally identical. 35 An. 981; O. C, 2286.
   The opinion of the court was delivered by

Fenner, J.

Prior to 1880, the present plaintiff, Cleophas Broussard, was in possession of the tract of land here in controversy under a certificate of entry issued by the register of the United States Land Office pursuant to the Act of Congress approved May 20, 1862, “To secure Homesteads to actual settlers on the Public Domain.”

Désiré Thibodeaux (who died during the pending of the suit and was succeeded as party thereto by the present defendant as his widow and natural tutrix of their children) brought a petitory action against Cleophas Broussard, claiming title to the land by virtue of a State patent issued in 1858 under the provisions of the Act of Congress of 1849, known as the swamp land act.

Cleophas Broussard joined issue denying the title of Thibodeaux and asserting his own inchoate title under his homestead entry and certificate.

The case was decided against Cleophas and in favor of his adversary, and, on appeal to this court, the judgment was affirmed.

Reference to our decision, which is reported in 32 An. 882, will show what the issues were and how they were decided.

The sole question was whether the land in controversy was included within the lands which had been duly selected, approved and confirmed and conveyed by the United States to the State of Louisiana, under the provisions of the Swamp Land Act of JL849. If so, the State patent, under which Thibodeaux claimed, was valid and conveyed good title which could not be affected by 'subsequent entry and settlement under the United States Homestead Act of 1862. If not, then the State patent was void and the Homestead entry was valid.

This question was finally tried and determined, and we decided that this land was embraced within the land selected, confirmed and conveyed to the State under the Swamp Land Act; that the State patent conveying title thereto was valid and effective, and that the subsequent entry and settlement under the United States Homestead Act were without effect. Under this judgment (presumably) the present defendant went into possession.

Since the decision of that case, Oleophas Broussard has applied for and obtained from the United States a patent for the same land, Based upon the same certificate of entry and settlement which he had set np in that suit.

Armed with this patent he brings the present petitory action, in which he again claims the same land.

He is met by the plea of res adjudicata, and from a judgment sustaining the same he prosecutes this appeal.

The two causes present, in our opinion, a complete identity of parties, of capacity, of object, and of cause of action. The only change of position that we can discover, arises from the fact that the plaintiff has obtained a patent from the United States, based upon the certificate of entry which he held and propounded in the former suit. But the patent is nothing more than a final confirmation of the right conferred by the certificate of entry. It merely •completed and rendered absolute the divestiture of the title of the United State in favor of the holder of the certificate. But, whatever superior effect the issuance of the patent may have as between the certificate holder and the United States, it is plain that, as between the holder and third persons, the certificate conferred all the rights • on the former which the patent could have done.

We have, heretofore, had occasion to announce this principle very emphatically, as follow's:

“From repeated adjudications of our courts oh the subject, we gather the settled doctrine to be this: That'whilst a receiver’s receipt or certificate is not of equal dignity with a patent, as showing the complete and absolute divestiture of the title of the government, yet that land, so held under the former, enters fully into the domain of private property; that such certificate of entry is sufficient evidence of title to support a petitory action; that the land is subject to taxation, unless reserved therefrom by special congressional legislation; that it is the subject of any kind of contract under the operation of our laws touching the rights of each and every class of persons in their various and manifold relations. 4N. S. 260; 10 L. 159; 11 L. 321; 19 L. 334; 4 An. 262; 5 An. 197; 9 An. 137; 13 Peters, 436; 3 Howard, 461.” Simion vs. Perrodin, 35 An. 931.

Plaintiff could not possibly have had any additional or greater rights in the former action under this patent than he had under the certificate. The question would still have arisen whether or not, under the swamp land act, the title to this land had finally passed from the United States to the State of Louisiana. If, as we held in the former suit, the title had so passed to the State, it is manifest that no subsequent certificate or patent to the same land issued by the United States could avail against the vested title of the State and her patentees. This was the controversy which was presented and determined between these parties by our former judgment; and the mere change in the form of plaintiff’s title not in any manner adding to its legal sufficiency, can not change the nature of his cause of action or authorize him to reopen a thing adjudged against him.

As we have heretofore said: Matters once determined by a court of competent jurisdiction, if the judgment has become final, can never again be called in question by the parties or their privies.’? Heroman vs. Institute, 34 An. 805.

And again: “ It matters not under what form the question be presented, whenever the same question recurs between the same parties, the plea of res judicata estops. Sewell vs. Scott, 35 An. 553.

Judgment affirmed.

Breaux, J., recuses himself.


author: McEnery, J.

text:
    No. 1398.
    Succession of A. M. Jan.
    A juago is disqualified to pass on the homologation o£ an account, wliere the assignee o£ a claim, transferred by him, attempts to enforce its payment by an opposition to the account.
    Although the claim has been transferred without recourse, yet there is an implied warranty as to the existence of the debt, and the judge is interested to this extent.
    APPEAL from the Twenty-first District Oourt; Parish of St. Martin. Mouton, J.

      Felix Voorhies for the Executor.

      Louis J. Voorhies and Edward Simon for the Opponents.
   The opinion of -the court was delivered by

McEnery, J.

In this case a motion was made to recuse the District Judge, James E. Mouton. The motion was referred to Hon. O. O. Mouton, Judge of the Twenty-fifth Judicial District, who denied the motion.

The judge, James B. Mouton, was a member of the law firm of Mouton & Martin, before his elevation to the district bench. This firm obtained a judgment against a debtor for the decedent. Before he qualified, Judge Mouton transferred all his fees for legal services due said firm to his former law partner, Robert Martin. This transfer was made without recourse, and he was not to return the. cash amount which he received for them whether the fees were collectible or not.

The administrator for the succession of Jan filed his account, refusing to allow the fee for services rendered by Mouton & Martin in recovering the judgment for Jan against the debtor. For this reason Robert Martin opposed the account. Hence the motion for the recusation of the judge by the administrator of the succession of Jan.

When James E. Mouton transferred this account for fees, among others there was an implied warranty as to its existence. The transfer without recourse went no further than to warrant against the insolvency of the debtor. To the existence of the debt there was an implied warranty. O. C. 2646.

To this extent the District Judge was interested.

In the Succession of Rhea, 81 An. 324, this court said: “The decree of a court should be not only impartial, but no pretext should, as a stepping stone, be allowed to stand between its impartiality and even the most unreasonable suspicion, for, as well said, “praise is without feet, and-the wings of blame are swifter than the winds.”

We have no doubt that the District Judge felt perfectly disinterested. There also can be no doubt that Ms pecuniary interest in the litigation was very remote — too remote to influence his judgment. But, nevertheless, there was an interest, however remote and distant, sufficient to incite the tongue of the disappointed to the most unreasonable suspicion.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, .avoided and reversed, and it is further ordered that this case be remanded to be proceeded with according to the views herein expressed, and according to law, the succession to pay the costs of appeal.


author: McEnbry, J.

text:
    No. 1402.
    Leo Landry vs. Semar Broussard.
    Where there has been a destruction oí titles to property, and a party wishing-to purchase goes to the original owner of the property for information, and he-disclaims title to the same, and joins in a deed relinquishing- all claims to the-same, he is estopped from setting up title to the property against the party whom he induced to purchase the same.
    APPEAL from the Twenty-fifth District Court, Parish of Vermilion, Mouton, J.

      Lewis L. Bourges for Plaintiff and Appellant:
    1. A plea of estoppel can not he maintained where it appears that the party, against whom the plea is directed, was ignorant of the truth relating- to the matter which formed the subject of the plea. 33 Au. 1194; 38 An. 813,100.
    2. A person, who, under the belief that a certain state of facts exists, and without auy intention to defraud another, makes certain statements to that other person which induces him to do an act, is not estopped by those statements, which, lie believed to be true at the time. 34 An. 816; 10 Lea. (Tenn.) 406.
    3. Two things are necessary to create an estoppel en pevis: (1) An intent to defraud, or an assertion, known by the party who made it, to he false at the time he makes it; and (2), an injury caused to the person who pleads the estoppel by the assertion so made. 12 Wis. 112; 125; 105 111. 318; 104 111. 49; 150 Mass. 324; SO-Ala. 145.
    4. A vendee, who has recourse against his vendor for the reimbursement of his outlay, can not plead injury, and the vendee in this case can have such recourse

      White & Broussard for Defendant and Appellee:
    1. Claims which are shown by the face of plaintiff’s petition to be fictitious, will not be considered as elements in determining the court’s jurisdiction. 39 An. 504; 38 An. 801.
    2. A claim for damages in the shape of rent, should not be allowed in favor of a party who has consented to and acquiesced in his adversary’s peaceable possession as an owner. 35 An. 1191; 5 La. 117; 42 An. 399.
   The opinion of the court was delivered by

McEnbry, J.

The plaintiff obtained from the United States Government a patent to lots 1 and 2, See. 28, and lots 1 and 2, See. 34, in T. 12, S. of R. 4 E., in the district of lands subject to sale at Opelousas, Louisiana, containing 123 13.100 acres. This land the plaintiff mortgaged to one Judice. The mortgage was foreclosed many years ago, and the lots 1 and 2, Sec. 34, were sold according to the proces verbal, with some town lots also mortgaged, in the town of Abbeville. Although the lots 1 and 2 in See. 28 do not appear in the process verbal, they were seized to satisfy the mortgage debt. The lots 1 and 2, Sec. 34, were described as containing the amount of land patented to the plaintiff. Daniel O. Bryan became the purchaser of the property, lots 1 and 6, Sec. 34, described as containing 123 13.100 acres, the amount of land in the patent. He took possession of all the property which was mortgaged, including lots 1 and 2, Sec. 28. Lots 1 and 2, Sec. 34, were inventoried as containing the above amount of acres, and at his succession sale, sold in the same manner. The property, lots 1 and 2, described as containing 123 13.100 acres, went through various transfers, all the purchasers taking possession of and acting as owners of lots 1 and 2, Sec. 28. The plain-tiff during all these years lived in the neighborhood of the property, and was under the impression that lots 1 and 2, Sec. 28, had been sold to satisfy the mortgaged debt and purchased by Bryan. He was present at the sale. He at no time until the institution of this suit set up any claim to the property, or asserted any rights to it.

The courthouse in the town of Abbeville was destroyed by fire and valuable records destroyed. The titles to the property in controversy shared the same fate. In the transfer of property in the parish of Vermilion, it was, of course, necessary to be careful in the transfer of property, and, as far as possible, to reinstate deeds.

Semar Broussard, desiring to become the owner of the property in controversy, refused to purchase the same without a renunciation of title to lots 1 and 2, Sec. 28, by the plaintiff. Broussard, induced by the representations of the plaintiff, purchased from one Trasimond Babineux, for the price ol $994, lots 1 and 2, Sec. 28, which had before this sale been omitted in the deeds in the sevei’al 'transfers, but described as to quantity.

In this sale, made in May, 1887, the plaintiff joined in the act of sale, and declared on his part as follows:

“And to these presents personally appeared and intervened Leo Landry, of said parish, the original owner of said land, and from whom said land and others had been seized in the suit of Judice vs. Leo. Landry, and purchased by the late Daniel O’Bryan, at said sheriff sale, some twenty-two years ago; that since that time he laid no claim in and to the land herein conveyed, and ratifies said sheriff’s deed for said land, and abandons and relinquishes all claims, rights, titles and demands in and to the tract herein conveyed.”

This deed was read to the plaintiff, and a map of the land exhibited to him, and lots 1 and 2, section 28, pointed out to him.

After the execution of this deed he brought this petitory action to recover back said lots 1 and 2, section 28, on the grounds that the property had never been sold, and that the above declaration on his part was an error of fact, the existence of which he did not know when he appeared and signed said deed.

There was judgment below rejecting his demand, and he has appealed. The presence of the plaintiff at the first sale, over twenty-two years ago, his silence during the time of the various transfers of the'property and its occupancy by the purchasers as owners, his final abandonment of all claim or title to it, and his belief that the property had been sold to satisfy the mortgage debt, lead us to believe, although there is no evidence of this fact, in consequence of the destruction of the records and the sheriff’s deed, that the property was actually offered for sale and adjudicated to Bryant, and its omission by the description of the lots and sections was an error on the part of the sheriff in the process verbal, as the quantity of the land stated therein corresponds with the amount in the patent to the plaintiff.

Under this state of facts we are of the opinion that the plea ofestoppel must prevail. The records having been destroyed, the plaintiff was the person to give the defendant Broussard correct information as to the title to the property. He acted on this information, and purchased the property in controversy. Broussard obtained the information in good faith, and practiced no fraud or artifice on the plaintiff to obtain it.

It may be a hardship on the plaintiff to lose his property, but it is through his own fault and negligence, and he must bear it, as the defendant is innocent of any wrong, and purchased through the representations of the plaintiff. Where two innocent parties must suffer, he whose fault caused it must bear the infliction of the injury.

Judgment affirmed.


author: Breaux, J.

text:
    No. 1399.
    Francois D. Broussard vs. Anatole Verret et al.
    An agreement under which trees were taken possession of and belted, will not be decreed null because signed by the transferrer alone.
    The School Board should keep a written record of its proceedings.
    The time granted in the agreements having elapsed, within which to belt trees, new work will not be protected under the terms of the agreements, an extension not having been proven.
    APPEAL from the Twenty-first District Court, Parish of St. Martin. Mouton, J.

      Felix Voorhiea for Plaintiff and Appellant.

      C. H. Mouton for Defendants and Appellants
   The opinion of the court was delivered by

Breaux, J.

Plaintiff sues to recover the sum of $3500, value of timber, he alleges that the defendants have taken possession of and sold for their account.

He claims to be the owner of these trees, under a contract dated the 17th day of September, 1883, entered into with the president of the School Board of the parish of St. Martin, authorizing him during one year, to deaden, cut down and trail trees on. Sec. 16, T. 11, S. B., 9 E., for which he bound himself to pay $1 a tree.

He paid $760 altogether for the trees he floated and sold.

He avers that, in addition, he left some 500 trees bn that section of which he Was the owner.

To recover he must prove that the title was in him.

' In 1888 one of the defendants entered into an agreement with the School Board of the parish of St. Martin, whereby he was authorized ■to deaden, cut down and float cypress trees on this land.

He deadened about six hundred trees, and sold about an equal .number. The judgment of the District Court condemned this defendant to pay $250, the value of fifty trees.

■ The other defendant had no claims as an owner; was only an employé of his co-defendant, against whom all claims have been abandoned.

The plaintiff and the defendant appeal.

The authority of the School Board to sell trees at private sale is not questioned. Under the pleadings that issue is not before us. A number of bills of exceptions have been reserved.

Our attention is directed to three of these bills. Only one will be decided, at this time. The others will be considered with the issues presented. In the first, the grounds are that the court erred in admitting in evidence the authorization in writing under which the plaintiff acted in floating off and selling the trees.

The plaintiff accepted the conditions of the sale of these trees. He paid the amount due. The evidence showing under what authority he had taken possession, deadened; cut down, and sold certain trees, was admissible, and to it effect was properly given.

Under the permit declared upon, and under which the rights of plaintiff arise, the time granted to plaintiff to deaden these trees expired on the 17th day of September, 1884.

During the trial the plaintiff claimed more than he had alleged, for no mention is made of an extension of time, under the original permit to cut trees. The plaintiff in bringing suit relied exclusively on the sale of 1883.

Granted that proof of an extension of time was admissible, although not alleged, the evidence admitted did not make proof of any fact.

The plaintiff testifies that an extension was given to him verbally some time after the expiration of the original right.

The president of the board, by whom, he says, the extension was granted, has no recollection of any extension-granted by him. If he had, and had' particularly recalled same verbal permit, the result would be the same, for that officer has no authority to make verbal grants of any kind affecting the school land sections.

They are not in his charge, but they are placed in the trust of the Board of School Directors of which he is the presiding officer.

Their proceedings are required to be in writing — and ■ a record should be kept.

This defeats all effects sought to be given to the verbal extension claimed.

The original right is not sustained by any actual obtainable evidence in writing of the board’s action.

The president testified that he was absolutely certain that he had been duly authorized by the board.

We accept the statement as correct, and conclude that possibly in an old record book stored away in a dark corner such authorization as that testified to is recorded.

This is the utmost effect can be given to this evidence.

The extension can not be considered proven.

Therefore, the term granted to plaintiff to deaden these trees-expired on the 17th day of September, 1884.

The number of trees deadened prior to that date must be determined, also those deadened after. Plaintiff has no right to the latter.

He contends that the 500 trees, the value of which he claims, were all deadened in the spring of 1884; that it was not possible to float them out before the flood of 1890.

This contention is not sustained by the evidence.

The plaintiff, as a witness, does not fix the date.

The other witnesses, who have testified as to the date these trees were deadened, make it evident that nearly all work was done subsequent to 1884, i. e., after the contract had expired.

While any work commenced under the contract could be prosecuted to its legitimate end, plaintiff, after, that time, had no authority to 'undertake new work on this section.

The defendant, in one of his letters, impliedly at least, admits certain rights on plantiff’s part.

His employé, the workman in charge, testifies that fifty trees were taken of those deadened by the plaintiff.

This is corroborated by other testimony. While the defendant can not be held bound for all the trees deadened in the section in question, he should pay those actually taken by him, which were deadened prior to the 17th day of September, 1884.

Considered in its entirety the evidence justifies the conclusion that these trees were deadened prior to the last mentioned date.

The judgment appealed from reserves to plaintiff the right hereafter to an action against defendant for any other trees on this section taken by him, deadened prior to said date, and to which plaintiff has a right under his written agreement.

The decree appealed from does substantial justice.

We the more readily reach this conclusion for the reason that defendant’s contract did not authorize him to cut down and float away deadened trees.

The plaintiff had deadened these fifty trees, and has a right to the ■enforcement of the contract for his work prior to 17th of September, 1884.

Judgment affirmed.

The costs of appeal to be paid by appellant and appellee, in proportion of one-half each.


text:
    No. 1403.
    James Smith et al. vs. A. Escoubas et als.
    The action to dissolve a sale for non payment of the price is prescribed by ten years.
    Prescription is suspended, not interrupted, by the minority of the heirs.
    The prescription running against a father at the time of his death is added to the course of prescription which has run since the heir is of age.
    APPEAL from the Fourteenth District Court, Parish of Calcasieu. Read, J.

      L. L. Bourges for Plaintiffs and Appellees.
    <7. DeBaillon, A. R. Mitchell, Fournet & Pujo and A. R. Mitchell, Jr. for Defendants and Appellants:
    1. Exceptions which affect the very foundation of the suit should be decided in limine, and should not be referred to the merits. 88 An. 525, Cochran vs. Violet etals.; 88 An. 282, Farmer vs. Halley.
    2. Tender of the outstanding notes and such part of the price as has been paid by the vendee is a condition precedent to the institution of the suit. 38 An. 587, I-Ieirs of Castle vs. Floyd et als.; 23 An. 854, George vs. Knox; 21 An. 425, Latham vs. Hickey.
    3. Suit ejm not be maintained if plaintiffs can not restore the statu quo or bring about the restitutio ad integrum. 38 An. 589, Heirs of Castle vs. Floyd.
    ■4. The action to dissolve a sale for non-payment of price is prescribed by ten - years. 34 An. 989, Edwards vs. White; 39 An. 301, Heirs of Pike vs. Heirs of Charlotte.
    5. Prescription not complete at the ancestor’s death is suspended, but not interrupted, by the minority of the heirs. C. C. 3522, Hennen’s Digest, page 1231, No. 14; 6 An. 686, Smith vs. Gibbon; Mai’cadé, Vol. —, Prescription, pp. 150 and 295.
    6. So where a father, against whom prescription has been running for six years, dies, leaving minor children, four years after their majority will complete the prescription of ten years. Hennen’s Digest, page 1231, No. 14; 6th An. 686, Smith vs. Gibbon; Marcadé, Vol. —; Prescripiion. pp. 150 and 295.
    7. La Suspension laisseen reserve le temps de prescription qui peut etre antérieurement acquis. Marcadé, Vol. Prescription, pp. 150 and 295, Chap. Ill, p. 287.
   The opinion of the court was delivered by

Breaux, J.

The plaintiffs are the heirs of the late Pierre Smith,, and sue to dissolve a sale made by their father in 1866, for non payment of the purchase price.

The price was $2000; $950 cash and the remainder payable in three,, six and nine months from the day of sale.

Prior to instituting suit plaintiffs did not make a tender of the outstanding purchase notes nor the cash portion of the purchase price.

The defendants alleged this ground of defense, also that the petition discloses no cause of action.

They plead the prescription of ten years as a bar to plaintiffs’ action to enforce the resolutory condition.

Judgment was rendered for defendants as in case of non-suit. Tim minutes of the court a qua set forth that the judgment of non-suit was sustained because of the want of tender pleaded.

The defendants on appeal urge that the judgment should not be one of non-suit; that the judgment should maintain the plea of prescription and end the litigation. The plea of want of tender was. well taken and does not admit of discussion.

As the plea of prescription is pressed it will be decided, and the other, of no cause of action, will be passed over; for prescription, if maintained, will finally dispose of the case.

The records disclose the following:

The sale from Pierre Smith to Hilaire Esceubas and Adolphe Esceubas, now sought to have dissolved, was passed on the 20th day of August, 1866. Adolphe Esceubas afterward sold his interest to Allen L. Perkins, made one of the defendants in this suit.

Citation was served on Mrs. Hilaire Esceubas on the 3d day of December, 1889; on Adolphe'Esceubas on the 4th day of December,. 1889, and on Allen J. Perkins on the 6th day of December, 1889.

We have already seen that the last installment matured May 20, 1867, from which time plaintiffs’ right to the resolutory Condition for non payment of the price accrued.

The right was prescribed on the 10th day of May, 1877, for it is no longer an open question that the action is subject to the prescription of ten years.

The plaintiffs contend that the prescription was suspended during the minority of the minors.

The defendants admit that suspension continued during the minority,. •and urge that if the years of minority of plaintiffs be deducted, more than ten years’ prescription remains.

Plaintiffs allege in their petition that their father, Pierre Smith, •died in 1873. It is proven that he died May of that year.

At his death six years had elapsed of the ten years.

Plaintiff, George Smith, was not a minor at the time his father •died.

It is proven that he was born in 1841. Prescription was not suspended as to him; for more than ten years had elapsed from the date of the maturity of the last installment to the date citation was served.

It is proven that the other plaintiff, James Smith, was of age in August, 1879.

, His right of action prescribed in 1883, more than six years prior to the date this suit was instituted. The minority does not interrupt, but suspends the course of prescription. Smith vs. Gibbon, 6 An. 687.

The years which elapsed prior to the death of his father are added to those that have elapsed since he became of age. This completes the ten years’ prescription

The issue of prescription having been presented, and it being met by the defendant, we think it proper to finally decide the case.

It is, therefore, ordered,.adjudged and decreed that the judgment appealed from be affirmed, in so far as it decrees that tender of the price paid was necessary, and offer to return the notes representing the credit portion before instituting an action to dissolve the sale, and that the judgment be amended by striking out therefrom “ as in case of new suit,” and instead, it is decreed that defendants have judgment, rejecting plaintiffs’' demand.

As amended, judgment appealed from is affirmed at appellees’ costs.


text:
    No. 1396.
    The State ex rel. O. H. P. Sample vs. Judge of Tenth Judicial District Court.
    The Supreme Court will not exercise its supervisory powers over interior courts in cases in which relief can be had from an appellate court, vested with exclusive jurisdiction over the subject matter.

      ^/^PPLICATION for Mandamus, Prohibition and Certiorari.

      E. W. Sutherlin for the Relator:
    1. Bond for suspensive appeal from a judgment for a specific sum must be for a sum exceeding by one-balf the amount for which the judgment was given. An intervenor arresting the operations of a judgment for plaintiff against defendant, can not do so on more favorable terms than the defendant; but in this regard occupies no better position than the defendant. C. B. 575 ; 22 An. 115.
    2. Plaintiff claiming the ownership of a promissory note must give bond for suspensive appeal from the judgment rejecting his demand, for a sum exceeding by one-half the amount of the note. In fixing amount of suspensive appeal bond, both in the code provisions and in the jurisprudence, it is protection to the appellee that is aimed at. C. P. 575; 25 An. 653; 23 An. 35; 16 An. 251. Butrule not applicable where appellee is otherwise protected. 34 An. 216, 539; 10 An 345; 16 La. 520.
    3. In those cases where the amount of a suspensive appeal bond rests in the discretion of the judge, that discretion must be reasonable and just. In such cases there are well established precedents in our jurisprudence wherein the Supreme Court, on reviewing the action of district judges on'prohibition and mandamus, have required an appellant to give bond for an additional amount to secure appellee’s rights and protect him against loss. 19 La. 167; 27 An. 334; 34 An. 1210.

      J. F. Pierson for the Respondent.
   The opinion of the court was delivered by

Bermudez, C. J.

This is an application for-writs of mandamus, prohibition and certiorari.

The allegations are; That the Relator sued to recover the amount of a promissory note for §445; that certain parties intervened, claiming the ownership of the note; that judgment was rendered, in favor of plaintiff, rejecting the intervention and condemning the defendants to pay plaintiff; that the intervenors asked and obtained a suspensive and devolutive appeal from the judgment, returnable to the Circuit Court of Appeals, on their giving, in each instance, a bond for $25, which was done.

The contention is, that the District Judge should have fixed the amount of the bond at one-half over and above the claim.

For the reasons given in the case of State ex rel. Sample vs. Judge, just decided, this court has no jurisdiction over the merits of this application, and must refer the Relator to the Circuit Court of Appeals.

Application dismissed.


author: Bermudez, O. J.

text:
    No. 1397.
    The State ex rel. O. H. P. Sample vs. Judge of the Tenth Judicial District Court.
    Tlie exorcise oí the supervisory powers oí the Supreme Court, under Article 90 of the Constiution, can not be successfully invoked, in a ease rightfully appeal-able to a circuit court oí appeals, in which an appeal has been granted, returnable to that court, to test the sufficiency oí the amount fixed by a District Judge, in allowing a suspensive appeal from a judgment rendered by him.
    The circuit courts oí appeal have, under Article 104 oí the Constitution, the exclusive power to issue writs of mandamus, prohibition and certiorari, in aid oí their appellate jurisdiction.
    It is to that court and not to this, that the relator should apply for relief, it entitled to any.
    y^PPLIOATION for Mandamus, Prohibition and Certiorari.

      E. W. Sutherlin for the Relator.

      J. F. Pierson for the Respondent.
   The opinion of the court was delivered by

Bermudez, O. J.

This is an application for writs of mandamus. prohibition and certiorari.

From the showing made, it appears that suit was brought before the Tenth Judicial District Oourt against the relator for the recovery of a note for §881, which was in his possession, and of which he claimed to be the owner; that judgment was rendered, rejecting the demand and recognizing the defendant’s title; that thereupon the plaintiff obtained a suspensive and devolutive appeal, returnable to the circuit court of appeals, on giving a bond for §25 on each appeal., both of which were furnished.

The complaint is, that the District Judge should have required a bond for one-half exceeding the amount of the claim in order to render effectual the appeal, as far as suspensive.

The relator invokes the exercise of the supervisory jurisdiction of this court, under Article 90 of tlie Constitution, to compel the District Judge to vacate his order and to fix a sum exceeding by one-half the amount of the claim as that of the bond to be given, in order to have the appeal to operate suspensively.

However broad the powers of this court may be, under that conservative eon'stitutional provision, they have never been, and will not be, exercised when the relief sought here can be asked and obtained from another competent jurisdiction vested with exclusive, authority in the premises.

The appeals in the case mentioned by the relator are returnable ta-the Circuit Oourt of Appeals, and properly so, the amount or matter-in dispute being exclusively within the jurisdiction of that court-under the terms of the Constitution, .Article 95.

Had the matter in dispute exceeded §2000, and had appeals been-granted from a judgment in the case, returnable to this court, we ■ would have jurisdiction, and could pass upon the merits of the application for relief; but such is not the case.

It is apparent that under the provisions of Article-104 of the Constitution, which vests Circuit Courts of Appeals with the power to issue writs of mandamus, prohibition and certiorari, in aid of their appellate jurisdiction, the Circuit Coart of Appeals to which the ap^ peals granted have been made returnable, not only is competent, but:, is the only court having jurisdiction to hear and determine the-question attempted to be submitted for decision, on its merits, to.' this court.

The Relator has, therefore, no right to invoke the supervisory - powers of this court, in the case stated, and must apply -for relief, if ' entitled to any, to the Circuit Court of Appeals to which the appeal», granted have been made returnable.

Application dismissed.


text:
    No. 1401.
    M. O. Broussard vs. A. L. LeBlanc, Sheriff, et als.
    "Where the plaintiff’s petition substantially alleges that an act is apignorative eon - tract executed by a married woman in favor of a creditor of her husband, and the sole consideration of which is alleged to be a security for its payment, a cause of action* for its amendment is stated, and an exception of no cause of action can not bo maintained.
    APPEAL from the Twenty-fifth District Court, Parish of Vermilio.» Mouton J.

      Lewis L. Bourges for Plaintiff and Appellant

      On the Exception of no Cause of Action.
    1. Eor the purposes of trial of the exception of no cause of action, the allegations of the petition are taken as true. 39 An. 660; 30 An. 1148; 31 An. 339.
    2. The object or purposes of a suit, or the subject matter in dispute, should be determined, not by the prayer alone, but from the body of the petition in conjunction with the prayer, 37 An. 628; 38 An. 912; 3 An. 268; 10 An, 719.
    3. An allegation that “ for the sole and only purpose of securing his personal debt to vendee, petitioner’s husband caused her to sign a document, which she afterward discovered to be a sale,” is a cause of action. R. C. C. 2398; 33 An. 1009; 34 An. 635; 42 An 950.
    4. An allegation that “ petitioner’s husband caused her to sign a document, that she signed it through ignorance of its contents, and of her rights in the premises,” is a cause of action. R. O. 0.1797,1819 ; 33 An. 1194.
    5. An allegation that “petitioner never received a cent for, or on account of, said sale,” and that “ it is a simulated and fraudulent sale,” is a cause of action. 36 An. 284; 31 An. 672; 36 An. 199.
    6. The petition herein filed alleges (Trans, page 2, line 29, and page3), that in November, 1872, her husband, Demosthenes Nunez, being personally indebted to Joe S. Nunez, of this parish and State, to the amount of eight hundred dollars, and for the sole purpose of securing this debt of his, caused her to sign a document of whose contents she was ignorant at the time; that she now finds this document pretends to be sale of the above described land to J. S. Nunez; that she never received a cent from J. S. Nunez for, or on account of, said pretended sale; that she signed it through ignorance of its contents and of her lights in the premises; that said sale is fraudulent, simulated and void, etc. That is to sajq that the sale is null for four causes of action, to-wit: Violation of Art. 2398, R. O. 0.; Error, Simulation, and Eraud. It therefore alleges a cause of action. 33 An. 1009; 34 An. 635; 42 An. 950; R. C. O. 1797,1819.
    On tiie Plea of Kstoi’pel.
    1. A married woman is not estopped by her declarations in an act from denying its validity. 33 An. 1009; 34 An. 633; 30 An. 1024; 34 An. 1065; 39 An. 600.
    2. The fact that a sale is signed by a married woman, in payment of which a note, signed by her husband and herself, apparently, is.given, is sufficient to set a would be purchaser on his guard. 29 An. 124.
    3. A security can not plead what his subrogor could not plead against the debtor; and as the State in this case can not plead that it is an innocent third party, the security can not plead it. 36 An. 781.
    4. The fact of defendant, Joe S. Nunez, being the apparent owner of the tract in dispute, did not influence the State, nor cause it to give credit to the tax collector, Joe S. Nunez. Therefore, the above plea of defendants, that they are innocent third parties, if maintained, would be unjustifiable and iniquitous. It must fall.
    Ratification
    1. A married woman who, during marriage, has signed a mortgage on her separate property in favor of a third party, the money received for which is given to her husband and used by him for his own use, nevertheless has the right to sue to annul a fraudulent sale of her property, and can not be said to have ratified such a sale by her said act. 28 An. 758.
    2. A married woman cannot ratify any act of hers, done during marriage, until the marriage is dissolved 34 An. 288.

      u. Defendants, having knowledge of the possession of vendor, which is a badge of simulation, were bound to take notice and inquire whose property it was. 30 An. 1024.
    ON THE MEllITS.
    1. The sale of the wife’s separate property for the purpose of securing the husband’s debt is forbidden by law, and, therefore, null. R. O. O. 2398; 33 An. 1009; 34 An. 630; 42 An. 950.
    2. One can not have the use and enjoyment of a tract of land without being, in possession. Trans , p. 2.
    3. A married woman may enjoin the execution of a judgment and the sale of her separate land thereunder. 30 An. 1021; 39 An. 600.
    4. Plaintiff was the pretended vendor, and she was in possession, to the knowledge of defendants (Trans., pp. 16,18) after the sale. Therefore the sale was a simulation. O. C. 2480; 36 An. 284; 40 An. 310.
    5. Although the sale purports to be a cash sale, it is proven that neither the note nor the cash was ever given to the vendor therein, or to any one for her. Therefore it was a sale without a price (Trans., pp. 15 and 16), and null. 5 R. 101; 1 An. 192; 36 An. 284.
    6. A party who signs an act of whose contents she was ignorant at the time, and who was ignorant of her rights in the promises, is not bound by such a con* tract. R. O. 0.1797,181E>.
    7. The sale being an absolute nullity (42 An 950; 33 An. 1009; 34 An. 635), the petitioner is the only true and lawful owner of the tract of land in dispute, and she is entitled to have the injunction issued herein made perpetual against defend ants and the sheriff.
    8. A woman can not ratify any of her acts, during marriage. 34 An. 288; Brief of Appellant.

      White & Broussard for Defendant and Appellee:
    1. A party's right of action is to be tested by the grounds as set forth in his pleadings.
    2. Articles 2397 and 2398 C. O. are independent the one of the other, and neither exercises any control over the other. 41 An. 711.
    3. The prohibition contained in the latter article, which forbids the wife to bind herself or her property for her husband’s debts, does not restrain her from alienating her paraphernal property, even though the consideration of the sale be a debt of the husband. 6 An. 455; 41 An. 711.
   The opinion of the court was delivered, by

Watkins, J.

Plaintiff, a married woman, claiming ownership of the property in dispute, in her own paraphernal right, accompanied with possession, seeks to restrain'the defendants from making a forced .sale thereof, under an execution against one Joseph S. Nunez, in ■whom there is an apparent outstanding title.

An exception of no cause of action was filed, and, by consent of parties, it was referred to the merits to be tried therewith, though judgment was to be separately rendered thereon.

Judgment was thus rendered', the exception sustained and the suit dismissed; and it is from that judgment the plaintiff has appealed.

The sole question we have to consider is, the adequacy of averment in the plaintiff’s petition, if proved, to sustain a judgment.

First, averring her husband’s paraphernal indebtedness to her, her judgment against him on that account, accompanied by a judicial decree of separation of property, and the satisfaction of the money decree by the seizure and adjudication to her in 1868 of the property in suit, she further avers:

“ That in November, 1872, her husband, Demosthenes Nunez, being personally indebted to J.-S. Nunez 4 * * to the amount of §800, and for the sole purpose of securing this debt of his, caused her to sign a document of whose contents she was ignorant at the timo; that she now finds that this document pretencjs to be a sale of the' above described lands to J. S. Nunez; that she never received a .cent from J. S. Nunez .for or on account of said pretended sale; that she signed it through ignorance of its contents, and of her rights in the premises; that said sale is simulated, fradulent and void, being nothing more than an attempt to deprive petitioner of her paraphernal property to pay the debts of her husband, in direct violation of a prohibitory statute,-R. C. C. 2398; that said sale being absolutely null and void, said Nunez has neither right nor title in and to the tract of lands described, and that petitioner is the sole and lawful owner thereof.”

These are the allegations, the sufficiency of which is questioned by defendants’ exception, an exception to which the judge a quo sustained.

The theory entertained by defendants’ counsel is, that the controlling and substantial allegations treat the transaction between Joseph S. Nunez and the plaintiff as a sale, and that it is irrevocable and valid under the principles of law which are announced in Morrow vs. Godcheaux, 41 An. 711; and this is, doubtless, the view which was entertained by the District Judge. In entertaining this view, we are of opinion that our learned brother of the lower court has fallen into error, because a careful analysis of the plaintiffs’ averments do not justify the conclusions of defendants’ counsel, or the court below.

To begin with, the averment is made that, “for the sole purpose of securing this debt of his (her husband) caused her to sign a document of whose contents she was ignorant at the time; that she now finds that this document pretends to be a sale.” This averment is followed by the further statement that there was no cause or consideration therefor, so far as she was concerned, she not having “ received a single cent from Nunez for or on account of said pretended sale.” She further declares “ that said sale is simulated, fraudulent and void, being nothing more than an attempt to deprive petitioner of her paraphernal property to pay the debts■ of her husband, in direct violation of a prohibitory statute.” Then follows the concluding averment, “ that said sale being absolutely null and void, said Nunez has neither right nor title in, and to the tract of land described, and that petitioner is the sole and lawful owner thereof.”

To our thinking, plaintiff’s allegations distinctly disavow anything like a sale of the paraphernal property to Nunez, in payment of her husband’s debt to him, in whole or in part; and they declare, emphatically, that her husband caused her to sign the document in question, for the sole purpose of securing the debt her husband owed Nunez.”

To sustain the defendant’s exception of no cause of action, on the theory of Morrow vs. Godcheaux, the averments of plaintiff should have stated such a case as we found that to be; not such a case as the plaintiff’s was alleged to be. Referring to that ease, we find that the plaintiff had executed an act of sale to the defendant, freely and without any marital influence, or restraint; and that, of the total consideration of $8000, she received $2550 in her own hands, and authorized the expenditure of the residue of $450 for her husband’s account. Under this state of facts, we held the sale valid, and said that Articles 2?.9'7 and 2898 of Revised Oivil Code contained no prohibition against such a sale as that. But the plaintiff in this case does not state such a case as we found that to be. While they are somewhat inartificially drawn, plaintiff’s allegations substantially show the document she executed in favor of Nunez to be of hypothecary or pignorative character, and, considered as such a con-' tract, the case comes clearly within the principle of Krouse vs. Neal, 42 An. 951.

It is, therefore, clear that the exception of no cause of action was improperly sustained. But, notwithstanding the ease was tried on its merits, there was no judgment rendered on the merits, and the plaintiff’s appeal does not bring up the merits for review; hence,, the only judgment we aré competent to render is one reversing the judgment sustaining the defendant’s exception.

It is, therefore, ordered and decreed that the judgment appealed from be annulled and reversed; and it is now ordered and decreed that the cause be remanded and reinstated for a trial on the merits, in conformity with the views herein expressed.


author: McEnerv, J.

text:
    No. 1407.
    Oscar Derouen, Under Tutor, vs. William S. Davidson et al.
    A sale of property described by boundaries, where one of them cannot be definitely fixed and ascertained, is not a sale per aversionem. Where one of the boundaries is described as by “ donor’s” land, and no limit is fixed whore the boundary is to commence, it is not" a sale witli’n fixed limits and a sale per aversionem.

    A PPEAL from the Twenty-first District Court, Parish of Iberia. L \ Mouton, J.

      Walter J. Burke for Plaintiff and Appellant.

      L. O. Haeker for Defendants and Appellees.
   The opinion of the court was delivered by

McEnerv, J.

The defendant is a judgment creditor of one Tibune Ñores. He issued a fi. fa. on his judgment and seized and advertised for sale certain property, seized as the property of said Ñores. Previous to the seizure he made a dation en payment to his wife, who afterwards died, leaving several minor children, the issue of her marriage with Ñores. A description of a part'of the immovable property comprising the dation is as follows: “ One tract of land, situated in Iberia parish, bounded north by Donor, south by Stansbury, south by Gall and Hebert, east by Mitcheltree and Unknown, and west by Hardy; said tract contains fourteen 'arpents, more or less, and all improvements.”

The validity of the dation en payment is not questioned. The defendant, Davidson, seized under his judgment, the land embraced within this description, which contains two hundred acres.

The minor children of the deceased Mrs. Ñores, by their under-tutor, enjoined the execution of the judgment upon this property, alleging that it is the identical property given in payment to their mother by their father. If the sale was one, per aversionem, there can be no doubt as to the correctness of their contention.

They would be entitled to all the land contained within the designated boundaries regardless of quantity. In a sale per aversionem the boundaries must be fixed and certain, so as to give evidence of the intention of the parties to convey the land within the designated and specified boundaries, without reference to the quantity. In the description ( f this property, the limits are not so fixed as to show that it was the intention to convey a specified body of land. The donor owned the land to the north. There is no limit fixed to the northern boundary. As he, the donor, owned all the land from the south boundary to the extent of his ownership north, there is no means in the description of locating where the lands of the donoi should mark the limits of the lands donated.

In order to fix the northern boundary, it is necessary to compute the area by arpents to ascertain the northern limit of the land donated.

It is evident, therefore, that only fourteen arpents, the amount of land designated in the dation en payment, were conveyed to the donee, the measurement commencing from the south boundary.

Fourteen acres of this land rightfully belonged to the minors.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended so that the order dissolving the injunction shall apply only to one hundred and eighty-six acres of land, embraced within the description of the property in the sheriff’s return on the execution. In other respects it is affirmed, the appellee to pay costs of the appeal.


author: Bermudez, O. J. Watkins, J.

text:
    No. 1400.
    William Castagnie et al. vs. Therese Bouliris et al.
    The proof allowed to be introduced, in the absence of documentary evidence and direct oral testimony establishing a marriage, must be clear and unmistakable, to raise a presumption of marriage, as is settled by the jurisprudence on subject, which is affirmed.
    Children born from the intercourse of persons livingpublicly as man and wife, and introduced by them as tlieir offspring, must establish cleai’ly their legitimate filiation, in order to recover in a petitory action, from one in actual possession as owner, and who claims and establishes a title to the real estate revendicated.
    Natural children, even when duly acknowledged in the form prescribed by law, do not enjoy the rights and privileges of revendication with which the law vests forced heirs, whenever their legitime has been trenched upon.
    In a petitory action, the plaintiff must recover on the strength of his own title.
    A PPEAL from the Twenty-first District Court, Parish of Iberia. Mouton, J.

      Foster & Broussard for Plaintiffs and Appellees:
    S. Where the question of legitimacy is not raised by the pleadings, but merely the question of heirship, it is sufficient to pi’ove descent.

      % Where a man introduces a woman to his friends as his wife, calls her his wife, and he and she live together publicly as man and wife until her death, and their children, born while they are thus living together, are reared and cared for as their legal offspring, at the common domicile, and bear the name of .tlieir father, the law will presume that they have been lawfully married, and that their children are legitimate, until it is shown that no marriage between •them ever took place, or that it was void on account of some nullity established by law. 30 An. 1388.
    ;3. Marriage may be proved by every species of evidence not prohibited by law, which does not presuppose a higher species of evidence within the power of the party. 20 An. 97; 32 An. 308.
    1. The fact of marriage may be proved by circumstantial testimony, and by gen- . oral reputation, cohabitation, and long x’esidence together. 3 La. 33; 85 An. 030.
    . o. It is not to be presumed that those who hold themselves out in society as man and wife are rearing a family of children at their domestic board,to whom the .father giveshis name, over whom he exercises a parent’s authority and administration, a parent’s protection and support, are living in open disregard of public morals and common decency, and that tlieir offspring are bastards. 6 La. 4, 70; 30 An. 1397,2 An. 945. "
    •■ft. It will be presumed that the community of acquets and gains exist between the husband and wife, until the contrary is shown. 30 An. 1106.

      12. Where after the marriage and under the regime of the community, a business which had formerly belonged to and been conducted by the wife, is conducted in the name of the husband, it becomes the business of the community. 36 An. 390.
    .'3. Lands purchased in the name, of the wife and partly with her paraphernal funds under the administration of the husband, and partly with the funds of .the community, fall into the community. 39 An. 877.

      i$. ‘The presumption of law is that property purchased during the marriage, «whether in the name of both or either spouse, is community property. B. O. 0.2402. The wife may rebut this presumption, in doing which the burden of proof of three crucial facts is upon her, to-wit: (1) paraphernality of the funds; <2) administration thereof separately and apart from her husband; (3) investment by hei\' 89 An. 632. In the absence of which proof the property will be presumed to be community.
    .10. Legal heirs, up to the amount of their legitime, are not estopped by the declaration in«the aot-of sale, fx’om proving that property bought in the wife’s name, declared to be bought with her funds, is community property. BO An. 1036; 3S An. 600 and 819; 35 An. 33 and 570.
    11. Legal heirs are not estopped, by the declaration in the act of sale, from proving that property bought in wife’s name, declared to be bought with her funds in community property, when these funds are purely speculative, and evidence appears in the declaration itself affording full proof of the fact that the wife had no funds whatever with which to moot the obligation contracted in the act of sale.
    12. The court may, exproprio motu, where it docs not appear affirmatively that the amount involved exceeds two thousand dollars, dismiss the appeal. 34 An. 406; 38 An. 395; 36 An.'419.

      L. T. Dulany for Defendants and Appellants:
    1. It is a general rule of law that plaintiff must make his case not only probable,. but certain. Hennens* Dig. ICv. XIII, A. No. 1.
    2. A case involving the question of legitimacy is no exception to tho rule. 15 An,. 410.
    3. Tlic proof of legitimacy or legitimate filiation, involves the proof of the marriage of tlic parents, and the identity of t^e child as the issue of that marriage; it differs essentially from the proof of the filiation of legitimate children* wherein the marriage of the parents is admitted or is established. C. N. Ast. ■ 819; Duranton, Vol. 2, Tit. 7, Sec. 1; 20 An. 9S; 15 An. 410.
    4. Under the laws of Louisiana marriage is a contract that must be established by legal evidence: in the absence of the best evidence, secondary and parolwill be admitted, but the absence of the best evidence must be first accounted for. 15 An. 410.
    5. The court will take judicial notice of the fact that a record of marriages is kepi* • in the public records of the parishes of this State, and also of the universas custom in all Catholic churches, that tho register of marriages and baptisms is kept with great care; the failure of plaintiff to procure such evidence will make proof against him. 40 An. 81.
    6. When, in a ease involving tho question of marriage, no direct evidence of the marriage is adduced, or its absence accounted for, all the presumptions will be against the marriage. 15 An. 410.
    7. “Although our jurisprudence has recognized the rule that marriage will be presumed from long cohabitation, and general reputation and conduct, It is still a fact that under our laws marriage is a contract, the best evidence of which is some act as prescribed by the Civil Code showing the consent oragreement of the parties to contract marriage.” 35 An. 632.
    8. Long cohabitation, and general reputation and conduct will not raise a pro sumption that the parties were married, unless the facts show that the relations between the parties were characterized in the beginning by a free consent to contract the obligation of marriage, and itimnt exclude the idea that the ardor began and the parties were drawn together merely through the promptings oí sensuality. 35 An. 633.
    9. “Agreeing to live together as man and wife does not make marriage; the law docs not sanction voluntary cohabitation, nor elevate concubinage of whatever-duration to the dignity of marriage.” Bishop on Marriage and Divorce; SO An» 1398.
    Facts from which to draw tlie presumption of marriage must be concise, cou10. sistent and weighty, and these known facts should draw with them the unknown fact as an almost necessary consequence. 3 An. 103; 20 An. 98.
    .11. If the courts have somewhat relaxed the rigor of the law, to allow proof of marriage by long cohabitation and reputation, etc., it was only in the interest of persons who were the issue of marriages of which no direct proof could be adduced, and where the circumstantial evidence was conclusive in favor of the marriage, and excluded the idea of an illicit union. 35 An. 633.
    12. Testimony as to the visits and introduction of the woman as a wife should be considered with relation to the standing and respectability of the parties and visitors. 20 An. 495; 15 An. 410; 20 An. 97.
    13. Verbal declarations of the parties, though deceased,are legal evidence to show that their intercourse was illicit and that they were not married. 15 An. 46 and 410; 20 An. 97.
    14. Evidence offered and admitted for a special purpose, and especially restricted to that purpose by the party offering it, must be considered for that purpose alone.
    15. When the husband was a party to act of purchase of property in the name of the wife, reciting that the purchase is made with her paraphernal funds, and that neither he nor his heirs will ever claim the property as belonging to the community — he can not contradict the recitals of the deed; the question is one of estoppel. Creditors and forced heirs alone could do so, but the latter only to the extent of their legitime upon averments of fraud or error and injury. 35 An. 35; 41 An. 493.
   'The opinion of the court was delivered by

Bermudez, O. J.

This is a petitory action against parties in pos•session.

Originally, it was brought by William. Castanié and Mary Bouleries • against Ed. Laughlin and Therese Bouleries.

Mary Bouleries having died, William Castanié, her brother, had himself appointed administrator of her estate, and in that capacity ■continued the prosecution of the suit.

The action was for the recovery of the undivided half of four pieces of real estate, two in the possession of Laughlin and two in that of Therese Bouleries.

The plaintiffs claimed as the legitimate grandchildren of J. B. Bouleries; the first named through his mother, Delphine; the sec - ■ond through her father, Levy, representing themselves as’their lawful issue.

The contention on one side is, that J. B. Bouleries had married very long ago Adéle Ohaeata; that from that union several children were born, all of whom, died, save Delphine and Levy; that the former married B. C. Castanié, William being the issue of that union; that the latter also married, and that Mary Bouleries was born from that marriage; that, after the death of Adele Chaeata, the grandmother, •J. B. Bouleries married Thérese Mailles, then widow-of Bernard Delord; that, during the marriage, four pieces of real estate were acquired for the benefit of the community; that, at the death of J. B. Bouleries, half of said property vested in his widow, and the remaining half in his legal heirs, namely, his grandchildren, William Castanié and Mary Bouleries; that two of said pieces of real estate were sold by the widow, as though her exclusive property, to Laughlin, who could only acquire her share; that the widow is in possession of the remaining half of the other two pieces which belongs to the grandchildren by inheritance from their grandfather, J. B. Bouleries.

It is further insisted that the widow is liable for rents and revenues from the beginning of the illegal possession to the time of surrender' to the rightful owners.

On the other hand, Laughlin claimed an absolute title to the •entirety of the two lots sold to him by the widow, as the same was her personal and exclusive property.

The widow contended, first, that the plaintiffs were not the legitimate grandchildren of J. B. Bouleries; and, second, even then, that the two lots were paraphernal property, 'acquired with her individual funds, under her separate administration and invested by her in the purchase. Eventually, under the averment that she had in good faith constructed buildings and placed improvements on the lots, the widow, reconvening, claimed the value thereof.

A good deal of proof was admitted, some over objections, consisting of documentary evidence and oral testimony.

There was judgment in favor of Laughlin from which no appeal was taken and which must remain undisturbed.

Further, there was judgment in favor of plaintiffs, recognizing them as the legitimate grandchildren of J. B. Bouleries, declaring one of the two lots to be community property and estopping them from claiming any title to the other lot. The judgment went no .further.

.It proved satisfactory to neither side.

The plaintiffs appealed and ask a recognition of their rights to the second lot and to rents and revenues; and the defendant, Therese Bouleries, as appellee, prays for an amendment of the judgment, by reversing it, in so far as it went in favor of the plaintiffs, and, eventually, by allowing her the value of the buildings and improvements placed by her on the lots in good faith.

It is clear, that in order to recover from one claiming title to real estate of which he is in possession, a plaintiff can only do so on the strength of his own title.

In order to succeed in the present action, the plaintiffs ought to have established the marriage of J. B. Bouleries with Adéle Chacata, either by the act of celebration, or in its default, by witnesses, or by very strong circumstances establishing a presumption of marriage; and besides, the marriage of their respective authors; in all of which they have altogether failed.

The legal propositions' relied upon by the plaintiffs, touching the circumstances from which the presumption of a marriage arises and which are, to a certain extent, set forth in the authorities cited from the adjudicated cases in this State, and to which no special reference would subserve any useful purpose, can not be and are not disputed by the defendant, who, on the contrary, readily concedes them. The difficulty consists in applying them to the facts established in this controversy ? which, far from leaving on the mind an impression of such presumption, rather dispel all inclination to receive the same.

It does not appear, from the written evidence, or from the oral testimony, that either J. B. Bouleries or Adéle Ohacata ever represented themselves ashavingbeenmarriedi, ever alluded to any circumstance about their marriage, or that any one was ever heard to say that he had attended their marriage, or had heard any one mention anything about it as an actually occurred fact.

No effort is shown to have been made to discover any written evidence of it, either in the records of a church or of any public office in the vicinity of the place where they resided and at which, if celebrated, it occurred.

The very brother of J. B. Bouleries, who was on intimate terms with him all his life, was heard as a witness, and he utters not a word about the fact of the marriage, which, certainly, had it ever taken place, would have been, in some way, at least by hearsay, to-his knowledge. The manner in which he testifies shows that he does not really believe they ever were actually married.

The other witnesses heard do not state any circumstance from which the presumption of the marriage may be inferred.

The mere fact that the parties lived publicly as man and wife for a length, of time and treated their issue as though they were born in lawful wedlock, under the surrounding circumstances of this case, is insufficient to raise the presumption claimed.

The defendant, who was heard as a witness, testified that Bouleries told her that he had never married Adéle Ohacata, and that their children were illegitimate.

Of course, this testimony, coming from the party interested in making such statement, as emanating from one whose mouth, sealed in death can not be heard counter to it, is very weak, but feeble as it is, it is entitled to some weight. It can not be presumed that the woman has perjured herself, particularly as her character for truth .and veracity remains altogether unimpeaehed.

It is not contended in the least — on the contrary, it is conceded— that the proof clearly establishes a natural filiation of the plaintiffs way back to J. B. Bouleries and Adéle Ohacata; but, even if the proof had shown that the former had duly acknowledged, in the form prescribed by law, both Delphine and Levy as his children, and, besides, William and Mary as his grandchildren, this would not have conferred upon the latter the rights and privileges of revendication accorded by law to forced heirs, whenever their legitime has been trenched upon in some way o.r other.

The documentary evidence shows that the two lots were acquired by the defendant with the expressed statement that they were purchased out of her personal funds and for her separate advantage and exclusive benefit, or language to that effect; the investment, thus declared to have been made, having been admitted by J. B. Bouleries, who has signed the deeds.

The plaintiffs, not having the rights of forced heirs, and not being creditors, urging injury, etc., have no standing in court to contest the title of the defendant to the lots, who, we think, has even then satisfactorily proved them to be her separate estate, which has, therefore, never formed part of the community between Bouleries and her.

It is, therefore, ordered and decreed that the judgement appealed from be reversed, so far as it recognizes title in plaintiffs to the half -of one of the two lots involved; that, so far as it is rendered in favor of defendant, Therese Bouleries, it be affirmed; and, it is further adjudged, that it be so amended as to reject the plaintiffs’ demand entirely, and to quiet defendant absolutely in the ownership and possession of said lots; the costs of appeal to be paid by the plaintiffs and appellants.

Breaux, J., recuses himself as having been of counsel.

On Application nor Rehearing.

Watkins, J.

Alleging themselves to be the sole surviving descendants of J. B. Bouleries, their grandfather, the plaintiffs institute this action against his surviving widow of an alleged second marriage, and one of her transferees, for the recovery of their said ancestors’ one-half interest in certain real estate, which was acquired during said second marriage.

Plaintiffs’ contention is, that very many years ago, their grandfather was married to Adelé Ohacata, and, that of this marriage their parents, Delphine and Levy Bouleries were the sole surviving issue.

The answer of the defendants is a general denial, coupled with the special averment that the plaintiffs are not heirs of J. B. Bouleries, and that the property in dispute was, and is, not community, but belongs to his widow’s separate paraphernal estate.

Our opinion holds with the defendant’s theory on both of these propositions.

It declares substantially that there is in the record no proof of such a marriage, or even that the said parties ever declared that they were or ever had been married. That no one was ever heard to say that he had witnessed the celebration of a marriage between them. That the plaintiffs appear to have made no search in the records of any church or public office of the vicinity of where said parties lived for written or record proof of such a marriage.

It then announces as a proposition of law, that “ the mere fact that the parties lived publicly as man and wife for a length of time, and treated their issue as though they were born in lawful wedlock, is insufficient, under the circumstances surrounding this case,, to raise the presumption claimed.”

It then states as an additional fact worthy of note,, that the proof abundantly discloses, and that it is conceded by defendants to be a fact, that there was a filiation between said parties for many years; but it announces as a legal proposition, that even if the plaintiffs’ ancestor had duly acknowledged their father and. mother as his natural children in the form prescribed by law, this acknowledgment would not have conferred upon the plaintiffs, as their children, the-rights and privileges of revendication of property which the law accords forced heirs in case their legitime had been trenched upon.

Our opinion then states, as a fact — and this proposition is to be taken alternatively — that it appears from the defendant’s titles that she purchased the property in her own paraphernal right, with the concurrence of her husband, J. B. Bouleries, who joined his wife therein, and that plaintiffs have no standing in court as forced heirs or creditors would to attack them.

The objections urged in plaintiffs’ and appellee’s application, to our opinion are: (1) That the defendant’s answer does not fairly raise the question of the legitimacy of their parentage, that the maintenance of that proposition was and is a surprise to them, and that our judgment and decree should have been one of non-suit, only; (2) that the defendant’s deeds contain no recital disclosing the paraphernal; character of the acquisition; (3) that the proof introduced aliunde was insufficient to establish that fact which is essential to maintain.. defendant’s title.

(а) As plaintiffs’ title was alleged to be one by inheritance, and the - answer denied their heirship, definite proof was absolutely required, of plaintiffs’ legitimate heirship to entitle them to recover from a . stranger; and, in thus instituting suit, they incurred this risk, and, the burden of making such proof.

We can not understand in what manner they were taken by surprise ; but if the interpretation placed by the District Judge upon-, defendant’s answer caused them surprise, the proper course would, have been for their counsel to have then stated the grounds of surprise, demanded a continuance, and reserved a bill of exceptions to-, the judge’s declination, if refused. On such a showing we could have given plaintiff relief from any error the judge below might have committed.

We are of opinion that the defendants are fully entitled to the judgment pronounced.

(б) Our opinion does not hold that defendant, Therese Bouleries, is-. the owner, in her individual paraphernal right, of the property in controversy, but that plaintiffs have no standing in court as legitimate grandchildren of J. B. Bouleries to have-the titles interpreted and the property declared community property. That even if the. proof had disclosed the fact that their grandfather had duly and in proper form of law acknowledged the issue of his filiation with Adelé Ghacata as his natural children, that such acknowledgment would not have conferred upon such issue the rights and privileges of forced heirs of their grandfather, and heneé their position would ■not have been improved. *

Now, it is worthy of note that this proposition is hypothetically stated, and not as one that is substantiated by proof.

A reéxamination of the record fails to satisfy our minds of the correctness of the allegations of the application. We are unable to find any proof of marriage, or acknowledgment either. Really, the application does not contend that there is any such evidence in the record. Reduced to a last analysis, the ingenious argument is, that as the judgment should have been one of non-suit, therefore the legitimacy of the plaintiffs is an undetermined question, and therefore they have the status of forced heirs, and the corresponding rights of forced heirs to revendicate the property.

It does not avail the plaintiff to invoke the ruling in Bennett vs. Cignori, 41 An. 1145, in which a non-suit was rendered. The court did so because the plaintiff there had failed to introduce evidence which was within his reach; but it is not pretended in the present instance that any proof exists. It is claimed, on the contrary, that all the evidence of which the ease was susceptible was introduced. The plaintiffs have no right to keep perpetually a sword hanging over defendant’s head by the reserve of a right to eternal litigation. Interest sei publiese at sit finis litium.

Having maintained the finality of the judgment,' their argument is •fully answered and the correctness of the opinion established.

Rehearing refused.