author: McEnery, J.

text:
    No. 10,554.
    The State of Louisiana vs. William Harper.
    Under Act 126 of 1855, now become Secs. 1211 to 1216 inclusive, the power conferred upon the police juries and the authorities of towns and cities, relating- to the retailing of intoxicating liquors, went no farther than to authorize them to grant or withhold licenses for this purpose.
    The Legislature fixed the penalty for retailing intoxicating liquors without a license from the local authority.
    A police jury ordinance to prevent the retailing of spirituous liquors, which defines offences and imposes fines not known to the laws of the State, is null and void.
    Under Art. 170 of the Constitution it is within the power of the Legislature to delegate to local authorities full and plenary authority to regulate the sale of intoxicating liquors by uniform regulations, and to make a violation of the same an offence against the State. The Legislature has not yet passed any act conferring such power in pursuance of said article.

      Barksdale, J. PPEAL from the Third District Court, Parish of Lincoln..

      Walter H. Rogers, Attorney General, and E, H. McClendon, District Attorney, for the State, Appellant.

      Potts & Hudson and P. W. Pierce for Defendant and Appellee.
   The opinion of the court was delivered by

McEnery, J.

Wm. Harper was indicted by the Grand Jury of the Parish of Lincoln for violating a police jury ordinance prohibiting the sale of spirituous liquors within the limits of said parish.

He filed a motion to quash the indictment on the following grounds:

1. That the indictment charged no crime, misdemeanor or offence under the laws of the State of Louisiana.

2. That the police jury was without power and authority to enact said ordinance, as no authority or power had been delegated to said police jury by the Legislature for such purpose.

■3. That said ordinance violated Art. 170 of theRtate Constitution.

Sec. 1 of-the ordinance prohibits the retail' of spirituous liquors within the limits of the parish of Lincoln.

Sec. 2 prohibits the taking of or negotiating of'orders for the^sale of intoxicating liquors.

Sec. 3 prohibits the sending of orders or messages, written or verbal, by mail or by wire, or in spoken words, within the limits of said parish for spirituous liquors in retail quantities'for another person than for the sender.

Sec. 4 prohibits the receiving or delivery of spirituous liquors in retail quantities within the limits of said parish.

Sec. 5 prohibits the business of ordering spirituous liquors within the limits of said parish.

Sec. 6 is as follows: “That any person who violates any portion of this ordinance shall be liable to criminal prosecution before the District Court, on an indictment by the grand jury, or on information filed by the District Attorney.”

Secs. 7 and 8 provide for a civil proceeding to recover a fine and forfeiture imposed, and authorizes the District Attorney to sue for the same, and by injunction to restrain violators of the ordinance.

Sec. 10 prohibits the sheriff and tax collector from issuing licenses for the retail of spirituous liquors for the year 1890.

-The indictment contains counts for the violation of the several sections of the ordinance.

The motion to quash was sustained, and the District Attorney appealed.

Por a reversal of the judgment, the District Attorney relies upon Secs. 1211-1214, Revised Statutes, Sec. 76 of 1884, and the' State vs. Bott, 31 An. 663.

Art. 170 of the State Constitution declares the sale of alcoholic liquors a police regulation, and confers upon the General Assembly the power to regulate their sale and use. Under this article there. can be no question of the power of the General Assembly to delegate to the several police juries the right to regulate their sale and use, and for the Legislature to provide a uniform penalty for a violation of the regulations thus permitted to be enacted. So far the General Assembly has not passed any law conferring the full extent of this power upon the police juries of the several parishes, so as to authorize them to enact any regulations other than to prohibit the retailing of spirituous liquors.

Sec. 1211 of the Revised Statutes gives the police juries and the authorities of the towns and cities the exclusive power to make such laws and such regulations for the sale or prohibition of the sale of intoxicating liquors as they may deem advisable, and to withhold licenses from drinking shops and houses within their respective limits, as the majority of the legal voters may determine.

By Sec. 1212, the State relinquished all right to grant licenses when the local authorities had prohibited, under Sec. 1211, the sale of intoxicating liquors.

Sec. 1214 made it the duty of the several political subdivisions to carry out the object and purposes of the act.

Having conferred the power to grant or withhold licenses for the retail of intoxicating liquors, the Legislature then adopted Sec. 1215, which imposed a penalty of not less than $100 nor more than $500, .and, in default of payment, imprisonment for not less than fifteen ■days nor more than four months, for retailing spirituous liquors with■out a license from the local authorities.

'The police jury of Lincoln parish therefore under the grant of power already conferred by the Legislature, relating to the sale of intoxicating liquors, could only prohibit the sale of intoxicating liquors within the limits of the parish, in which case no State license could issue. And if any one then sold liquors in violation of the prohibition, he subjected himself to the penalty provided in Sec. 1215.

In the case of the State vs. Bott, 31 An. 665, which has since been (overruled in case of the State vs. Breaux, 33 An. 981, on the ground that the object of the statute had not been expressed in its title, the defendant was indicted for selling liquor on Sunday in violation of Act 84 of 1878. The act delegated full and plenary power to the police juries to make regulations for the sale of, or a prohibition of .the sale of, intoxicating liquors on Sunday, and it was made an ■offence against the State for a violation of the ordinance passed in pursuance of said act. In Act No. 126 of 1885, and sections of the Revised Statutes referred to, there is an absence of such delegated power, and the police juries are without authority therefore to pass .an ordinance relating to the sale of intoxicating liquors by retail, which affixed a penalty for the violation of the same. The extent of the authority of the police jury of Lincoln went no further than to prohibit the sale of intoxicating liquors by retail, or the keep'ng of a grog or tippling shop.

Act 16 of 1884 does not enlarge or extend the power conferred by Act 126 of 1885.

We have referred to State vs. Bott for the purpose of showing that the act, as interpreted by the decision in that case, does not contain the position taken by the defendant’s attorney.

The ordinance creates offences not embodied in the criminal law of the State, and provides.a penalty for their commission, and directs a prosecution for their violation in the name of the State. The police jury evidently exceeded its authority and assumed functions not delegated to it, but belonging to the Legislature.

We do not intimate that the police juries are without power to enforce penalties for violation of ordinances passed in pursuance of the authority vested in them for local police purposes. The Legislature, in conferring certain powers on the police juries, relating to the sale of spirituous liquors, only conferred authority to prohibit, and the ■State reserved the right to prosecute where spirituous liquors were sold by retail without a license from the local authorities.

The count, in .the indictment against the defendant, that he “did wilfully retail spirituous liquors without previously obtaining licenses therefor from the police jury or any town or city authority,” was dismissed, and we have therefore been confined to a consideration only of those counts which charge a violation of the section of the ordinance referred_to. They are clearly null and void.

Judgment affirmed.


source: Caselaw Access Project

author: Poché, J.

license: Public Domain

text:
    No. 10,567.
    The State of Louisiana vs. Aleck Starks.
    Tlio Supreme Court, having^no jurisdiction of facts in criminal cases, can afford no relief to an appellant wlio complains that the venue had not been proven on his trial. That matter was exclusively within the province of the jury.

      A PPEAL from the Twenty-Second District Court, Parish of Aseen - ii sion. Duffel, J.

      Walter H. Rogers, Attorney General, and R. McCulloh, District Attorney, for the State, Appellee.

      Frederick Duffel for Defendant and Appellant.
   The opinion of the court was delivered by

Poché, J.

The complaint of the accused, who appeals from an unqualified verdict of murder, is error on the part of the trial judge in refusing him a new trial.

The ground of his motion was failure on the part of the State to prove the venue of the crime charged against him.

The venue, like any other fact in the chain of evidence required to convict the accused, is exclusively within the province of the jury, with which the appellate court, vested with jurisdiction over the law of the case only, has no right to interfere. The argument of counsel, based on the line of authorities under which this court deals in criminal eases, with questions of law blended with facts, can not ■avail him in a matter of fact affecting proof of the guilt or innocence of the accused as charged. The cases which he quotes have reference to questions involving the manner of conducting the trial, and of disposing of its incidents, but not to questions of fact to be submitted to and considered by the jury alone. State vs. Hyland, 36 An. 87; State vs. Nelson, 32 An. 842.

This appeal is entirely covered by the decision of this court in State vs. Nettles, 41 An. 323, in which the syllabus reads: “A complaint that in a criminal prosecution there was no proof of the venue, involves a question of fact exclusively within the province of the jury, over which the Supreme Court has no jurisdiction.”

Should it happen that we had absolute proof of such a fact, we would be as powerless to relieve the appellant as we would be should we believe and know that he had not committed the deed for which he stands convicted. We are constrained to repeat here, that in criminal cases we have no power or authority to review the finding, of the jury on any question of fact.

Judgment affirmed.


author: Bermudez, O. J.

text:
    No. 10,568.
    The State ex rel. J. E. Poché vs. the Judge of the Twenty-Sixth District Court as Judge ad hoc of the Twenty-Second District Court.
    A judgment overruling the recusation oí the regular judge oí a court, is not in its nature interlocutory but final.

    Such judgment can be suspensively appealed from.
    REPLICATION for Mandamus and Prohibition.

      R. N. Sims for the Relator:
    1 A decree rendered by a District Judge of an adjoining district sitting as judge atl hoc, in the place of the judge of the court recused on the ground of interest, overruling and dismissing the motion and exception of recusation, is not an interlocutory order but a definitive judgment, from which an appeal directly lies to the Supreme Court.
    2. Even if such a decree be considered and denominated interlocutory in any sense, the same, by causing the reinstatement of the case before the recused judge, the resumption of jurisdiction over and trial of the case by him, notwithstanding the pending plea or exception of recusation before the final determination of the question o£ recusation and his competency by the Supreme Court, might and would inflict irreparable injury and an appeal lies therefrom. 6 La. 183; 39 An. 994-; .37 An. 203.
    3. All interlocutory judgments may be appealed from when .they may cause irreparable injury. Hennen, p. 23, No. 11, and cases cited. And it is sufficient that they may become so by a Anal judgment. 34 An. 588; 2 Rob. 842; 6 La. 435.
    4. Prohibition will lie to prevent a recused judge from exercising jurisdiction over the case until the plea of recusation has been effectually disposed of. 37 An. 253; 89 An. 994; 38 An. 1293; 34 An. 628; 36 An. 160.

      Pugh & Lambremont for the Respondent:
    No appeal lies from an interlocutory decree unless it works irreparable injury. 38 An. 340; C. P. 066.
    The order of Judge Rost deciding that Judge Duffel had no personal interest and thus maintaining the jurisdiction of the original judge is purely interlocutory and will be reviewed on appeal from the final judgment. 83 An. 340; 30 An. 382.
    When the law makes no distinction neither can the court. An appeal will not lie when the case is transferred, neither does it lie when the judge called in decides that there exists no ground of recusation. 33 An. 1284; 1 An. 26; 34 An. 1216; 13 An. 301.
    If the transfer be illegally made the judge to whom the ease is transferred is incompetent. .33 An. 340.
    If the decision refusing to transfer be illegal then the original judge is incompetent. The incompeteney exists as much in one ease as in the other, and the •injury would be the same in either hypothesis. Things that are equal to the same thing are equal to each other. If, therefore, no irreparable injury r suits from trying a case before an incompetent judge, to -whom the case lias, been transferred, then by what process of reasoning or logic can it be held that the refusal to transfer and the trial before the original judge, who at the most is merely incompetent, does produce irreparable injury? The language in 6 La. 180 must be taken in connection with the facts. There it is self-evident that the refusal to transfer did, under the particular facts, create irreparable-injury.
   The opinion of the court was delivered by

Bermudez, O. J.

This is an application for a mandamus.

The complaint is, that the defendant judge refuses to grant a suspensive appeal from a decree rendered by him, as judge ad hoe, overruling a plea of recusation, on the ground of interest of the judge of the twenty-second judicial district, in a case in which the relator is plaintiff, and which the respondent judge was. called on by the recused judge to consider and determine.

The averments are, that the decree thus rendered is a final judgment, and that, if it be not such, but a mere interlocutory decree, it is one which, if executed, would cause irreparable injury. It is therefore concluded that in either case a suspensive appeal lies.

The judge ad hoc returns that the suspensive appeal was denied, because the recusation,'being in'the nature of a plea to the jurisdiction, could give rise only to an interlocutory judgment, which would not work irreparable injury, for the reason that the right of the relator to appeal from the final judgment on the merits involves that of review of all interlocutory decrees rendered in the case, and that the relator’s application should be denied.

In order to determine properly the question thus presented, it is. essential to ascertain the nature and character of the decree rendered.

It is clear that the decree is either an interlocutory or a final adjudication. It can not be both. It must be either. As it is not. the former it is the latter.

The question raised by the plea of recusation, strictly does not appertain to the controversy between the litigants, and its determination can have no bearing on the issues presented by them, on the merits of the suit.

It does not grow from those issues directly or indirectly, although it arises and is presented in the progress of the case

It is in the nature of a proceeding for contempt which, although it be taken in the course of the suit, does not form part of them, and is altogether independent from them. In re Wood, 30 An. 672.

An interlocutory judgment is one which does not decide on the merits. It.is either ancillary to, or executory of, the final and complete adjudication of the ease. O. P. 538.

A final judgment is that by which the right of the parties at issue' on the merits of the suit are adjudicated upon and which may acquire the force of res adjudícala. O. P. 539; 35 An. 505.

The matter at issue, on the plea of recusation, in no way relates to the persons of the litigants, or to any subject involved in the controversy between them. It affects not the court, whose jurisdiction is not attacked, but the judge of the court, whose competency is assailed on the ground of interest. Whether the plea is well or ill-founded is a question which can in no manner influence the judgment on the merits of the litigation, or any subject growing out o£ the differences of the parties touching the same.

There is but one question raised, and it concerns the qualification" of the regular judge. A judgment on that issue can not be interlocutory, for such judgment would imply a final judgment in futuro.

As the question raised, when once decided, is no more to recur, it follows that the judgment on it would be and is a final judgment on that issue.

If it were an interlocutory decree, it would not be appealed from' suspensively for the reason that the execution of it would not work am irreparable injury, as, on an appeal from the final judgment in the' case, the ruling on the question of recusation could be revised, and, if found erroneous, would be avoided and the case remanded for other proceedings. Fields vs. Gagné, 33 An. 339.

From this standpoint the anomalous and, to some extent, appparently discordant views, expressed by the previous courts and the present one on kindred questions, can well be reconciled and harmonized.

While we consider it unnecessary to illustrate and establish this> conclusion, we think that it is proper to state that the decision of the: old court, in Jarreau vs. Ohoppin, 6 La. 133, is not authority to show that the refusal of the judge in that suit to transfer the case to-another judge, he and the parish judge having recused themselves as having been of counsel, was viewed as an interlocutory decree from which a suspensive appeal could lie.

It was an exceptional case. The judge had not arbitrarily refused the transfer, but had declined the demand because there existed then no law authorizing it.

The Supreme Court did not hold that it was an interlocutory decree. It considered, on the contrary, that it was a final judgment, of which the party it aggrieved could complain, as its effect would be to tie up the litigation indefinitely. It thought that it was a judgment capable of working an injury, and that it could be reviewed on appeal. It declined to dismiss and maintained the appeal, holding, on the merits, that the issue presented a casus omissus, and affirming therefore the judgment appealed from.

The error of the District Judge consists in assimilating this case to one in which a plea to the jurisdiction of the court is filed. In this case no judgment could be rendered dismissing the suit, because of the competency of the judge, while in the case stated, that sort of judgment could be rendered.

It is therefore ordered and decreed that the restraining order herein made i/n limine be maintained, and that the alternative mandamus issued be made peremptory, and that accordingly the suspensive appeal asked be granted by the respondent judge ad hoc, on appellant’s complying with legal requirements.

Mr. Justice Poché recuses .himself.


text:
    No. 10,781.
    Succession of Leon Arlaud.
    Tlie order of a competent court appointing an under tutor can not be attacked collaterally, and must stand until vacated or annulled by appeal or in a direct action of nullify.
    Tlie deliberations of a family convened for the purpose of recommending tlie appointment of a dative tutor, and resulting in an equal division between tlie members composing the same, decide nothing, and can not be tlie basis for the appointment of any one as tutor.
    PPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      E. D. LeBreton and Chiapella & DePoorter for the Appellant.

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

Poché, J.

This is a controversy over the appointment of a tutor .and of an under tutor to the minor, Leah Arlaud, only child of the •deceased.

At the time of his death, Leon Arlaud was divorced from his surviving wife, Helen Massin, who was then absent from the State.

By his last will the deceased had appointed Miss Helena Fitzgerald' liis testamentary executrix and testamentary tutrix of his minor child.

When the executrix presented a provisional account of administration, Mrs. Massin interposed an opposition involving the alleged nullity of the will, in so far as it purported to affect the tutorship, which she claimed for herself by nature.

At this juncture, Azenor LaFrance, the present appellant, was appointed and qualified as under tutor, and owing to the absence of the mother, who was yet in a foreign land, he instituted proceedings praying for a family meeting to recommend a dative tutor for the minor.

An order was thereon made by the District Court, convening a family meeting for the purpose of recommending proper persons to be appointed as tutor and under tutor of the minor.

The family meeting, with six out of seven members appointed, present, was duly convened. On the choice of a tutor the votes were equally divided; three members, including himself, voting for Lambert Prudhomme, and three others voting for the appellant, Azemor LaFrance. As to the under tutor, five of the members concurred in the recommendation of the same person. The under tutor, .LaFrance, refused to sign the deliberations of the family meeting, whereupon a rule was taken contradictory with him, for the appointment of Prudhomme as the tutor, and of Rapier as under tutor.

From a judgment making the rule absolute, LaFrance presents the * following appeal. Under the pleadings two points are presented for discussion:

1. Did the court have the power to submit the question of a choice •of an under tutor to the family meeting?

2. Was the appointment of Prudhomme as tutor recommended' by the family meeting?

I.

There is no question as to the legality of the appointment of' LaFrance as under tutor. It is not contested that the court appointing him was competent to make the appointment. It is not averred that he has ever resigned, or that he has ever been removed, or that, the order appointing him has ever been vacated, or otherwise1 annulled and set aside.

On the contrary, he was recognized as the under tutor for the purpose of presiding at the family meeting and for the purposes of the rule now under dsscussion.

It is settled, in our jurisprudence, that a judicial order or decree, stands until set aside by a direct action. And the rule has been extended to an order appointing an under tutor. The question came up in the matter of the Succession of John Keller and wife, 39 An 579.

In that case the adjudicatee of succession property refused to accept title on the ground of alleged nullity of the proceedings which had led up to the sale, the illegality being that the family meeting was presided by an under tutor whose appointment was unauthorized, null and void.

But the court held that the alleged nullity could not be set up collaterally, for the reason that “the correctness or regularity of a judgment of a competent court appointing a tutor can not be collaterally reviewed or questioned even by the court which has made the appointment.”

And after referring to numerous authorities in support of that proposition, the court continued and said:

“It requires no argument to show that the same rule must govern in the case of the appointment of an under tutor, whose functions are not less sacred, important and indispensable in the interests of minors than those of the tutor.”

“It may be, as suggested by appellant, that the appointment of ‘Voegtle as under tutor of the minors Keller was unauthorized and illegal, but that is the question which can not be investigated in a collateral manner. His appointment by a court of competent jurisdiction is full proof of his capacity, and has effect against third persons until set aside by appeal or in an action of nullity.”

Comment would be superfluous to show that the foregoing views are absolutely decisive of the point now under discussion.

II.

On the second point the consideration is that the deliberations of a family meeting composed of six members, resulting in a vote by three members recommending one person for the appointment of a tutor, and in a vote by the ^three others x’ecommending a different pe.ison, is tantamount to no recommendation at all.

It stands to reason that in all deliberative meetings the action of the body must result from the expressed will of at least a majority of the members composing the assembly, in the absence of which there is no action. In an election by the people a tie'vote is no choice. And we take it that the members of a family meeting, who are equally divided, can no more make a recommendation than four justices of this court, equally divided in opinion, can render a legal or binding decree.

The precise question, as applicable to family meetings, is new in our jurisprudence, but the views herein announced are in accord with the construction of the subject which prevails in French jurisprudence.

Laurent Droit Civil, Vol. 4, page 573; Demolombe Minorité, Vol. 4, page 186.

In this case the judge’s sole authority to appoint a dative tutor was upon the advice of a family meeting. O. C. 270.

And as the family meeting convened for the purpose has failed to give its advice, it follows that the appointment made by the judge was made without legal authority or sanction. Hence' it can not, stand, and the matter must stand in abeyance until another family meeting, duly convoked and held, shall have legally stipulated in the premises, and given its advice on the subject.

It is therefore ordered, adjudged and decreed that the judgmeixt appealed from be annulled, avoided and reversed at the costs of the succession. And it is now ordered that the cause be remanded to the District Court for further proceedings according to law and according to the views herein expressed.


author: Fenner, J.

text:
    No. 10,565.
    Mrs. M. A. Keller vs. John W. Shelmire.
    1. Whore the parties are owners of contiguous estates, and where the only ques-* tion to be determined is the boundary between the two, the action is one of boundary, and regulated by the provisions of Title Book I, B,. O. O.
    2. In an action of boundary, questions of ownership are not in issue unless founded on a prescription of thirty years, and titles are referred only to establish boundaries and not as affecting ownership.

      S. Where parties derive from a common author, the elder title must be first satisfied, and when that title conveys a fixed quantity of land, the holder is entitled to take such quantity.

      i. When an owner sells from a larger tract a fixed quantity of land to be cut off from one side by a line thereafter to be fixed, the fact that lie subsequently sells a part of the same land to a third person, does not destroy his obligation to give the first purchaser his quantity, and to so run the line as to give such quantity.
    APPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Buckner, J.

      Reed & Goodale for Plaintiff and Appellee.

      Kernan & haycock for Defendant and Appellant.
   The opinion of the court was delivered by

Fenner, J.

Although the plaintiff makes some effort to invest ■this action with the characteristics of the action of jactitation under his petition, converted into the petitory action by the pleading of defendant, it is in substance nothing more nor less than an action ■of boundary regulated by Title Y, Book II, of the Civil Code. The parties are owners of contiguous estates; neither questions the title of the other; the only difference between them is as to the proper boundary line between the two, and that is the only question to be ■settled in this suit. This eliminates all questions of title, of registry, and of prescription, except the single prescription of thirty years, which, though pleaded by plaintiff, has not a shadow of foundation. 'The question is to be decided according to the actual titles which neither party is permitted to dispute. R. C. C. 825, 852, 841, 848, 845; Andrews vs. Knox, 10 An. 604.

Plaintiff alleges that a certain hedge was fixed as the boundary line between the two places by special covenant between antecedent ■owners, the authors of the respective titles of himself and defendant, which has ever since been recognized as the boundary. Defendant ■specially denies this averment, and makes the counter allegation that the line claimed by him had been long established and recognized by antecedent authors of the respective titles.

Plaintiff adduces no serious evidence in support of the ^special covenant fixing the hedge as the boundary.

The evidence in support of defendant’s counter averment is very much stronger.

The judge appointed a sworn surveyor to fix the limits, under Art. 833, et seq., of the Code, whose report fixed the line claimed by defendant. t

His report, though opposed by plaintiff, was homologated by the-judge, who rendered judgment accordingly.

The parties derived from a common author, who owned the whole-property.

Defendant’s title is the more ancient, being derived from a sale,, by the common author, of 550 acres from the eastern end of theNeville tract, the western boundary (the line in dispute) to begin at a beach tree on a line marked T. & R., and an antecedent -plat, and to-be thereafter run by a competent surveyor.

Plaintiff’s separate title begins by a subsequent sale from the same common author, which convéyed 550 acres more or less, and declared its boundary on this side to be by the Macaulay tract, which is that now owned by defendant.

. Under the foregoing statement, if it stood alone, there could be no-difficulty, under the Code, in fixing the line. The defendant having the elder title and receiving a fixed quantity of land, Arts. 847 and 849 would conclusively require that his title should prevail and that a line should be so. run from the beech tree fixed as the terminal point in such direction as to give him 550 acres of land.

The only complication is that, at the time of the sale by the common author to Mccaulay, the former owned a tract of land of twenty acres which, under the general description contained in the title, would have been included in the 550 acres sold. This tract was separated from the rest by a public road.. A few months after the sale to Macaulay the common author made a sale of these twenty acres to a third person, who and his successors have ever since held and possessed the same without dispute.

This did not diminish the common author’s obligation to give Macaulay the full extent of the 550 acres conveyed to him, and as the sale of the twenty acres took place long before the subsequent sale to-plaintiff’s author, and as he was under this obligation at the time of said sale, we think the sale of so many acres, more or less bounded by the Maculay traet, meant the boundary to which Macaulay was entitled under the above facts and under the titles as they stood at that date, which showed sales of 550 acres to Macaulay, and of twenty acres to a third person.

There is strong evidence in the record to show that this was the understanding of the adjacent proprietors both before and after the sale to plaintiff’s first separate author, who was himself an heir of the common author and familiar with all the circumstances. The testimony of such respectable and intelligent witnesses as Mr. Robt. T. Young, Mr. McHugh, Mr. Chance, Dr. Mills and others who were directly connected with the transactions from the beginning, strongly confirms this view and establishes the line claimed by defendant, allowed by the surveyor and approved by the judge.

The line claimed by plaintiff would cut off from defendant not only the twenty acres, but more than eighty additional acres, while the line claimed by defendant gives him only 550 48-100 acres, and the fact that several titles in defendant’s chain give him precisely that excessive fraction, is confirmatory proof that the line must have been so fixed as claimed.

On the whole, we think the judgment conforms to both the law and justice of the case.

Judgment affirmed.


author: Watkins, J. Bermudez, C. J.

text:
    No. 10,523.
    B. Penouilh, Tutor, vs. Simon Abraham.
    An injunction arresting executory process for the sale of mortgaged property for cash will be perpetuated, on proof that time was allowed to pay the debt, although part of the claim was due at the institution of the proceedings, in the absence of any prayer by the creditor, to restrict the writ to instalments not yet accrued.
    The rights of the creditor to enforce this mortgage, in other proceedings will, however, be reserved.
    In ease one co-proprietor of real estate, enters into agreement with certain of his co-owners, of whom he is a creditor, to institute a suit against another, for a partition of the common property by licitation, and at judicial sale, to purchase the whole, and reoonvey to his associates their respective portions, at a fixed price, stipulating to give them one, two and three years to pay their indebtedness as an inducement. Held: that if said promising co-owner, subsequently, proceed against the said defendant in the partition suit, by a seizure and sale, in thafore.closure of a mortgage, and at sale thereunder become the purchaser ol her interest and thereby render further proceedings under the judgment in the partition suit impossible, he is, nevertheless, bound to keep his agreement with his associates, and can not proceed against them until the time expires.
    APPEAL from the Twentieth District Oonrt, Parish of Lafourche. Onion, J.

      O’Sullivan & Knobloeh for Plaintiff and Appellant.

      L. P. Caillouet for Defendant and Appellant.
   The opinion of the court was delivered by

Watkins, J.

On the 12th of September, 1889, the defendant •obtained an order of seizure and sale against plaintiffs, in the enforcement of a special mortgage securing the payment of three notes of $1260.60 each. On the 1st of November following the seized debtor enjoined the sale on the ground that the seizing creditor had granted time, and the proceedings were premature.

Under C. P. 741, the defendant in injunction obtained an order of court, ruling the plaintiff to summarily prove the truth of his averments, and on the trial of the rule his injunction was dissolved, and he has appealed.

The averments of the plaintiffs’ petition for injunction are substantially that, first, the seizing creditor entered into a written agreement with petitioner, in which he bound and obligated himself not to enforce the payment of said mortgage notes for a term of three years thereafter; second, that, subsequently, in order to induce a family meeting to consent to the institution of a partition suit against Mrs. Aladdin Broussard, as a co-proprietor of a plantation, owned in indivisión with the parties to said written agreement, the creditor reiterated his promise not to enforce his claim |for a period of three years, to the members of the family meeting when assembled.

The facts are substantially as follows, viz:

The Ravenswood plantation was owned in indivisión by Simon Abraham, Henry Tinney, Mrs. Aladdin Broussard and the minors Penouilh. All of the co-proprietors seemed anxious to get rid of Mrs. Broussard on account of her alleged disinclination to keep the place in repair and suitable condition for cultivation; and on the 12th of September, 1888, they. entered into a written agreement stipulating that a suit “ shall be at once instituted against Mrs. Broussard * * for a sale of the whole of said plantation, to effect a partition; that Simon Abraham shall buy in the whole at a price to be agreed upon by and between us, and shall immediately after said sale sell back to us, the other signers hereto, our respective interests for a price equal to our respective indebtedness, plus our respective proportions of the costs and fees to effect said partition; said price to be paid in three equal instalments, maturing at one, two and three years, with 8 per cent, interest from date.”

On the 24th of September following a family meeting was convoked for the purpose of obtaining their advice and consent for the minors Penouilh to join in the institution of the partition suit contemplated in the agreement; and it is proven by a decided preponderance of the testimony that Simon Abraham expressed a willingness to grant the minors three years’ time to pay their indebtedness to him, if they •would consent that the minors be made parties to the proposed partition suit against Mrs. Broussard; and that upon due deliberation said meeting assented thereto.

The effect of the recommendation of the family meeting was to ratify and confirm the previous act of the tutor in signing the agreement.

To the reception of this parol testimony defendant’s counsel objected and excepted that it was merely explanatory of the written agreement and could not be legally introduced for such a purpose. We do not think so. The manifest object in view was to confirm the contract entered into by the tutor without authority; and the parol evidence was offered, for the purpose of showing what influences were employed by Simon Abraham to accomplish that result and that the meeting accepted and acted upon them. For this purpose the testimony was admissible, and the judge a quo properly ruled to receive it.

On the 15th of October, following — only two weeks subsequent to the family meeting — the three parties signing the agreement, including the tutor, instituted a partition suit against Mrs. Broussard, and on the 15th of December afterward judgment was rendered ordering a sale of the common property to effect a division between the co-proprietors. This judgment was never executed.

But the record discloses that on the 18th of June, previous to the agreement, Simon Abraham obtained an order of seizure and sale-against the undivided interest of Mrs. Broussard in the plantation,, and that it was by the latter enjoined on the 16th of August, on the-substantial averment, that the notes and mortgage were executed by' her tutor during her minority, and by Abraham obtained by fraud, and collusion.

It further discloses that this injunction was dissolved on the 20th: of October, subsequent to the execution of said agreement, and oiv the 5th of January, 1889, the property went to sale, and was purchased by the seizing creditor, and Mrs. Broussard was dispossessed.. By this means the coveted object of Abraham was accomplished,, .and he did not attempt the execution of the judgment in the partition suit. Indeed, it was not susceptible of execution, because the interest of the only defendant in that suit had been sold, and it could serve no further purpose.

On this state of facts, counsel for the defendant insists that,, forsooth, the interest of Mrs. Broussard was not sent to sale under the judgment in the partition suit, and his client did not purchase* thereunder, but under his own judgment, nothing was accomplished' by the agreement and recommendations of the family meeting, and he is relieved of his obligation to extend the time for the payment of the minors’ indebtedness, and was entitled to proceed at the, time, and in the manner he did, to foreclose his mortgage.

The counsel, in his brief at page 4, says:

“The argument introduced in evidence * * * is & conditional’ one, the main consideration of which was the accomplishment of an entirely different object, to which the promise to give time was only incidental. The cause of that argument was the getting rid of Mrs. Broussard, one of the co-owners of the plantation,” and from this statement, the inference is clear, that as that end was accomplished by other means, albeit they were of Abraham’s own selection, the agreement was put at an end.

But the District Judge placed his judgment on a different ground:

“Had it been stipulated,” says he, “that Abraham should purchase this property at any price whatever, or had the price at which he was to buy it been fixed and determined, the contract would, in my opinion, be one that could be enforced against him. At any rate, had the agreement contained such stipulations, I do not think that he could sue on the notes now in suit until such a time as it could be shown that he could comply with the agreement by buying in the plantation. * * * The evidence does not show that any fixed price was ever agreed upon between them as that at which Abraham should bid in the property, and therefore, in my opinion, the contract is inchoate, incomplete, and not susceptible of enforcement.”

In our view the counsel’s argument is a complete answer to the judge’s reasoning.

Abraham has acquired the property — by other means, it is true— and there no longer exists any question or contention as to the price he was to pay. That feature of the agreement has been eliminated by his own act, he having exercised his discretion, under which one of two judgments against Mrs. Broussard he would proceed to expropriate her interest in the common property. But the agreement does not fix definitely and specifically the price at which he was to sell-to other co-proprietors. It says:

‘ ‘ And Mr. Simon Abraham * * * shall, immediately after the said, sale, sell back to us, the other signers hereto, our respective interests, fora price equal to our respective indebtedness,” etc. (Italics ours.)

It must have been considered of little interest — as it evidently was — at what figure Abraham was to buy, inasmuch as the exact amount he was to sell to each, and the exact amount each was to pay, were fixed and stipulated in the agreement.

Nor in the light of subsequent events was it a matter of any consequence under what particular judgment Abraham should acquire the interest of Mrs. Broussard, or in what particular mode the minors’ respective interests in the common property were secured, so that the amount of their obligation to him should not be increased. The only other interest they had was in maintaining the stipulation deferring the time of payment, and to this we think they are entitled. Surely their tutor has in no way violated the agreement, but has steadily kept faith with Abraham, and united with him in ' obtaining a judgment against Mrs. Broussard in a partition suit. The. relative positions of the parties are just the same as though Abraham had purchased under that judgment and sold to the other co-proprietors. We are of opinion that the partition proceedings were only intended to effect a sale in the event the injunction suit of Mrs. Broussard had terminated in her favor.. But it could not have been brought without making the minors parties. We think the defendant’s promise to give the plaintiffs time is in full force and vigor, and that he should be kept to his agreement.

It is therefore ordered, adjudged and decreed that the judgment appealed from be reversed, and it is now ordered and decreed that there be judgment in plaintiff’s and appellant’s favor, quashing and setting aside the defendant’s and appellee’s order of seizure and sale, and perpetuating plaintiff’s injunction, with cost against defendant and appellee in both courts.

■On Application for Rehearing.

Bermudez, C. J.

The main complaint of the defendant is, that toy the decree herein rendered, the injunction issued arresting his (executory proceedings was perpetuated.

An examination into the matter, indeed, shows that the time ■claimed to have been allowed, and which was one, two and three years, might be computed from the date of the agreement between Abraham .and the co-proprietors of the property, which is September 12, 1888.

The proceedings for the- seizure and sale were instituted just one year later. At that date, the creditor not having paid the matured part of his claim, was entitled to proceed against the property to .satisfy it.

In such case he ought to have asked the sale on proper terms, •allowing to the adjudieatee the time to which the debtors were ■entitled. He has not done so, either in his original petition or in •any other subsequent proceeding below or on appeal. We can not amend the judgment in his favor so as to allow him to proceed further in the seizure and sale case.

What can be done is simply to explain that he is not perpetually enjoined from collecting his claim against his debtors, but that he is not allowed to do so in the manner and form in which he has attempted to do so. His rights in other respects are fully reserved.

Rehearing refused.

Fenner, J., takes no part, not having participated in the original decision.


author: Watkins, J. Watkins, J.

text:
    No. 10,468.
    Succession of John T. Moore.
    . When the record contains no note of evidence we will presume, in accordance with established precedents, that in rendering judgments the judge a quo proceeded upon proper evidence.
    , Parties are neither required to have their evidence reduced to writing, nor to see to it that a note is made of the evidence which is introduced.
    3. The ascertainment of the disposable portion and of the legitime of the heirs are incidents of the settlement of a succession, and they must be fixed before it is wound up and its property turned over to the usufructuary or heirs.
    In order to determine the disposable portion of a succession, and the legitime of the heirs, the amount of donations inter vivos is fictitiously added to the property belonging to the donor at the time of his death. But if the property be held in community between the surviving wife and the deceased, and the donation be from the latter to the former, this fictitious addition of the amount of the donation must be made to the active mass of the community, and not to the donor’s separate estate. The donation can not change the character or amount of the respective rights of the spouses in the matrimonial community.
    In ease the husband, as the head and master of the community, makes, in favor of his wife, from the community property, an excessive donation, which is, on charges preferred by his heirs after his decease, reduced, and the excess ordered to be returned — Held: that this excess must be returned to the active mass of the community, and not to the donor’s separate estate.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      Bobt. G. Dugué for the Appellants.

      Thos. J. Semmes & Legendre contra.

   The opinion of the court was delivered by

Watkins, J.

On the 15th of June, 1888, Mrs. Agnes Jane Moore filed an account in the succession of her husband, John T. Moore, exhibiting a statement of the property of which her husband died possessed — all of which was community; of the amounts paid in legacies and expenses; and of the amounts proposed to be paid by the community to the spouses, respectively, and in the settlement of the separate estate of the deceased.

She prayed that the account be confirmed, and that she be recognized as owner of oné-half of said community property, in her capacity of surviving widow in community, and also as owner of one-third of the remaining one-half, under the will of her husband, subject to the future adjustment of the legitime of the forced heirs, when the time of partition shall arrive.

She further prayed that she be recognized as the usufructuary of the remainder of the one-half of the property inherited by the forced heirs, and that her possession of all said community property, in her said capacity, be recognized.

She caused Julia Moore, a major, and the minors Hickey and Flannagan, to be cited. The other heirs approved the account and demands of the petitioner in their entirety. The cited heirs opposed the homologation of the account, on the ground that it did not fix the amount of the disposable portion of the succession and property of the deceased, nor the respective shares of opponents as heirs, and in other particulars requiring no mention. The prayer of the opposition is,“that the said Mrs. Agnes Jane Moore, individually and as executrix, etc., be ordered” to so amend her account as to conform thereto.

On the trial this opposition was rejected and disallowed, and the account homologated. The petitioner was recognized as owner of one-half of the community property in her capacity as surviving widow, and of one-third of the remaining half under the will of her •deceased husband “subject to the future adjustment of the legitime of the forced heirs, when the time for partition shall arrive,” and as usufructuary of so much of the remaining one-half as may be inherited by the forced heirs.

Her right of possession of the whole was recognized as taking effect at the date of her husband’s death.

Opponents applied for a new trial on the ground that the judgment rendered is contrary to law and the evidence; and further, because the court erred in holding that the fixing of the disposable portion should be postponed until the time for making a partition|shall arrive.

The motion was to the effect that, under the law, and our recent opinion in 40 An. 581 — in this succession — the amount of the disposable portion must be fixed now.

For the purposes of this motion the entire record in that case was made a part of it. Opponents’ theory is, that they, as forced heirs of deceased, in that case sued for a reduction of the testamentary donations mentioned in their ancestor’s will, and that Jt "was therein •decided that a reduction must be made, and how it’must be made; and, that the fact that their inheritance is burthened with a right of usufruct, does not deprive them, as forced heirs, of the right of having the amount of their inheritance, at once, determined-

The court held that “the law and the evidence, being; in favor of' the defendant in rule,” it must be dismissed-

Therefore the opponents appealed.

I.

The first question presented and urged on the part of the accountant and appellee, is one of practice, and that is, whether, in the state of the record we have outlined, we can examine and revise the judgment appealed from. The statement of the appellee’s counsel is, substantially, that the mortuary proceedings, and proofs in the succession of John T. Moore, were not offered and filed in evidence on the original trial of the account, and that same were not considered by the judge a quo in determining the issues before him; and his contention is that, although they were considered on the hearing-of the motion for a new trial, this appeal is prosecuted from that refusal, and nothing can be decided.

On the other hand, appellant’s counsel contend that the account and opposition were received and treated by the judge a quo as integral parts of the original suit for reduction, and all proceedings as parts of the record.

That on the trial of the rule for a rehearing counsel for appellees objected to such record and mortuary proceedings being considered, and his objections were overruled, but he retained no bill of exceptions thereto.

The record furnishes no solution to the question-, It contains no bill of exceptions, and no note of the evidence offered on the trial. The original record appears annexed to the transcript of appeal.

The two cases cited by appellee’s counsel as authority, Brooks’ Syndic vs. Weyman, 3 M. 16, and Fire Insurance Company vs. Walton, 2 R. 562, are inapplicable. Those were jury cases in which motions for new trials were entertained and refused before judgments had been signed, and appeals at once taken therefrom were dismissed, as a matter of course. But in the instant case, a final-judgment was rendered and signed before the appeal was taken, and the judge’s ruling on the application for a new trial is reviewable. as any other incident of the case.

The whole case is before us, and we must take cognizance of the record as we find it, and decide the issues presented. We must assnme that the judge a quo had before him sufficient evidence to justify his undertaking to decide them, and intelligeutly, to do so.

This rule was approved by us, in Nugent vs. Stark, 34 An. 628, and by our predecessors in numerous cases.

In Simmons vs. Barrett, 23 An. 504, they say:

“We find no note of evidence in the record. In such a case we will presume the court a quo, in rendering judgment, proceeded on proper evidence.” Citizens Bank vs. Bringer, 22 An. 628; Smith vs. City of New Orleans, 24 An. 20; State vs. Monasterio, 26 An. 634; Succession of Pilcher, 39 An, 362.

The parties were not required to have their evidence reduced to writing, or to see that a note is made of the evidence introduced.

It was competent for them to have secured a statement of facts. C. P. 602, 603; H. D. 608.

But the record now before us stands in its place. The whole of it, and the mortuaria are before us. The judge a quo passed upon it, and decided on the merits of the case, and “by reason of the law and the evidence” dismissed the opposition, as his decree recites. The issues of law as well as of fact are distinctly made. The appellee has not moved for a dismissal of the appeal, but has joined issue, and her counsel have presented us with an oral and printed argument, and demand an affirmance of the judgment appealed from, on a hearing on the merits. Our affirmation of that decree would operate res judicata as to opponents’ demands. Granger vs. Singleton, 32 An. 898.

In case we feel authorized to adjust the amount of the disposable portion, appellee’s counsel concedes the sufficiency of the evidence in the record before us, and says “there is no error in the figures as to values.” If, then, the questions are such as we can decide, it is our duty to examine and decide them rather than turn opponents around to another action for the ascertainment of their rights. In any event, they are entitled to that.

II.

Appellee’s counsel do not argue, orally or in brief, the question of opponents’ right to have the amount of the disposable portion of the deceased’s fortune fixed and determined now. At any rate, the competency of the court to do so is not doubted by them.

The questions presented in the account, and in the accompanying petition, seem to necessitate the present determination of the amount of the disposable portion, the ascertainment of the reduction to be made of the legacies, and the fixing of the amount of the legitime of opponents, as forced heirs of the deceased. The accountant’s petition demands^ and the judgment awards to her the ownership of ■one-half of the community property as surviving widow; one-third of the remaining one-half, under the will of the deceased; and the usufruct of so much of the share of the deceased as may be inherited by all the heirs. The judgment also recognized her rights •of possession from the date of the death of her deceased partner in community.

"Why should the amount of the legitime of the heirs be relegated to future adjustment, or deferred until the time for making a partition among the heirs shall arrive?

It was certainly just as competent for the court to decide one ■question as the other. The heirs are quite as much entitled to have their rights and interests determined as the widow had to have her’s ■determined.

The Code declares that forced heirs can sue for the reduction of ■excessive donations, whether inter vivos or mortis causa, “on the ■death of the donor or testator.” R. C. C. 1504.

It also declares that “actions for the reduction of excessive donations” are prescribed by five years. R. C. C. 3542. The death of the donor or testator is the date from which this prescription begins to run.

It is therefore manifest that the law contemplated the institution of .such suit, without reference to the usufruct of the surviving parent ,of the forced heirs. That such an issue is to be determined in the mortuaria, and before the succession of the deceased is wound up .and the property surrendered into the possession of the usufructuary, and which can not be done until the succession debts and charges are paid, including, of course, special legacies is clear; and we conceive that the reduction of donations inter vivos must be likewise determined. Indeed, we deem it very questionable whether the utile iempus does not pass with the closing of the succession, and the transmission of the property to the heirs of deceased. For the survivor’s ■usufruct is of property in kind, and not of a succession.

The account under consideration carries as a credit the sum of $10,000, being the amount of two special legacies the executrix has discharged, but it makes no mention whatever of the donation inter vivos of $100,000 in United States Government bonds in favor of the accountant. The effect of the decree is to recognize the surviving widow’s right of possession and usufruct of the property of the deceased, and her right of retaining those bonds in her possession until her death or marriage; and to relegate opponents to a future litigation, in partitioning the property, to settle their right of reduction. Clearly, such a course is impracticable, and not the one contemplated by law. We are of the opinion that the reduction, if any, should be made now, and before the succession of deceased is closed.

III.

There is no doubt of the fact that one of the objects to be attained by the contestation of the opponents in the Succession of Moore, 40 A. 531, was to obtain either the revocation or reduction of the donation inter vivos of $100,000 in favor of Mrs. Moore. It is so stated in precise terms in our opinion in that case. For, say the court:

One of the objects of “this litigation is to have it judicially declared * * that the donations of securities and cash made by the deceased to his wife, in New York and New Orleans, are nullities, and if not such, are excessive, and should be reduced to the legal quantum.”

They say the defence is “that the donations attacked are valid,” and that the judgment therein appealed from held that they were simulated. The validity of those donations was maintained by that opinion, but it declared that “it is beyond all dispute that the plaintiffs, who are forced heirs, have, by the law, the right to bring an action in reduction.” For, say the court, “it is manifest that, unless they enjoyed that privilege, the exercise of which is optional with them, the articles of the Code, which prohibit excessive donations, when there exist forced heirs, would be dead letters, read out of the book altogether.”

The court concludes its examination of this branch of the case thus:

“There is no proof in the record that we have been able to discover establishing the value of the bonds at the death of Mr. Moore,. and there is no specific averment or prayer on the subject that can justify a decision, presently, of the question, whether the donations exceed, or not, the disposable portion, so that this matter must be left open for future consideration and determination in ot/ier pro - c eedings.”

The donation to Mrs. Moore of $7985.57 which figured in that case has been abandoned, and the donation of the $100,000 of bonds, alone, remains for discussion.

It is evident that Mrs. Moore’s counsel intended to obtain the homologation of a final account and terminate her trust as executrix. For it has been frequently held that by this means only could she be thus relieved.

Succession of Frazier, 35 An. 382, and in other eases, an executor’s right to relief had to be determined as a condition precedent to his possession as owner and usufructuary being recognized.

We think that the question of the reduction of the $100,000 donation was correctly raised on the trial of the final account, and being thus raised it was “ such other proceeding ” as was contemplated in our former opinion and within the option of opponents. As we said in Frazier’s succession: “These are all consecutive proceedings in the same judical cause, viz: the succession of John Frazier;” so we may say in this, that these are all consecutive proceedings in the succession of Moore.

On the main issue appellee’s counsel say in their brief “there is no error in the figures as to vahies, but there is error as to the mode of adjustment.” Page 2.

Of the error in the mode of adjustment, they say:

“The donations were of community property, and came out of the community, and therefore only one-half is to be returned to the estate of the deceased. Dickson vs. Dickson, 33 An. 1376.”

The principles of law applicable to collations to be made among heirs of an estate, are not applicable here, and the question under consideration in the Dickson case was that as to “ collations to be made by the several heirs.”

On this question the court expressed the opinion in Succession of Moore, ante, that “the widow, not being an heir, can not be required to collate, if the donations exceed the disposable portion.”

They further say:

“ It is because of that right of action, that the’ law provides that in determining the question of reduction, the property disposed of inter vivos, must be fictitiously added to that belonging to the donor .at the time of his death, and appraised at its value R. C. C., 1505, 1235.

“ It also emphatically provides, in calculating the disposable portion, that all the property donated, or bequeathed by the deceased, must be included, whether given to the children, to relations, or to strangers. R. O. C. 1234'”

That case furnished a good illustration of that rule of law, because the widow claimed ownership of one-half of all the property, in her own right, and of the disposable portion, under the will, and as the usufruetuaiy of the legitime of the heirs. The opinion is to the effect that neither question can be determined until the amount of the donation inter vivos is fictitiously returned into the succession, and that that could not be done until the value of the United States govern-ment bonds were ascertained. This has been done. The widow is, therefore, entitled to one-half; the heirs are entitled to two-thirds of the other one-half, as their legitime; the remaining one-third of one-half is the disposable portion, from which special legacies must be first paid, and to the residue of which the widow is entitled, as universal legatee, if it be in excess of donations, and, if it fall short of them, they must be correspondingly reduced. To arrive at a proper .adjustment of the disposable portion, as well as of the legitime of the heirs, the value of the government bonds must be fictitiously returned to the active mass of the community, so that from the whole a proper -deduction can be made of the community debts and charges and the net value of community assets ascertained. It can then be apportioned on the basis suggested above. Inasmuch as the proved value of the government bonds is shown to be $126,000, we will take that as the correct amount to be thus fictitiously returned.

The following is the proper computation, viz:

'Total assets of community inventoried - $284,090 05

Value of bonds returned ------- 126,000 00

$410,090 05

■Community debts - -- -- -- -- 11,480 66

Net community assets ------ $398,609 39

Widow’s one-half interest ------ $199,304 69

The net amount of deceased’s estate is composed of

•one-half of community assets - And his separate estate ------ §199,304 69' 7,000 00

Aggregating Disposable portion of one-third - §206,304 69 68,768 23

The legitime of two-thirds - §137,536 46

Of this sum each one of the nine branches are entitled to one-ninth, or §15,281.83, and to each of said nine heirs’ shares the usufruct of the widow attaches.

These amounts are represented by cash and property in kind, as stated in the inventory, and which on settlement among the parties, at the termination of the usufruct, are to be restored in kind at the original appraisment thereof.

It is therefore ordered and decreed that the judgment appealed from be so amended as to fix the disposable portion at the sum of §68,768.23; the amount of the legitime of the heirs at $137,536.46; and the respective portions of the nine heirs, severally, at §15,281.83.

It is further ordered and decreed that as'thus amended the decree of the judge a quo be affirmed, costs to be taxed against the succession.

Fenner, J., absent.

On Application nor Rehearing.

Watkins, J.

Appellants’ counsel invite our attention to the fact that the donation inter vivos to Mrs. Gibbons of §5850 is omitted from our calculation, and that its inclusion would make a difference in opponent’s favor.

They also insist that our opinion errs in returning the amount of the value of the donation of §100,000 to the community, and claim that it should be returned to the estate of the donor, according to R. O. O. 1504, 1505.

The section of the Code in which those articles are included treats “Of the Reduction of Donations Inter Vivos," etc., in general terms. In it no mention is made of separate or community property. The latter article reads thus:

“To determine the reduction to which the donations, either inter vivos or mortis causa, are liable, an aggregate is formed of all the property belonging to the donor or testator at the time of his decease; to that is fictitiously added the property disposed of by donation inter vivos,” etc.

What then, is, or was, the property which belonged to the donor, John T. Moore, at the time of his decease? It is everywhere conceded and admitted that all of the property belonged to the community except the sum of 87000, specified as his separate estate. Of course, one-half, only, of the community property belonged to him at the time of his death ana formed a part 'of his succession. The community consists of the fruits and profits of the reciprocal labor and industry of both husband and wife and of the estates they may acquire during the marriage. R. O. O. 2402. This would be presumably the case as to the property of Mr. and Mrs. Moore, in the absence of proof to the contrary and independently of any admission. Then it necessarily follows that the 8100,000 of United States bonds were community property at the time the donation was made.

It can not be seriously contended that the donation had the effect of converting them into separate property for the purposes of reduction. If this be true, a donation by Mr. Moore to|his'wife of the whole of the community property, would, by the same process of reduction, have converted it into separate property, aiid divested her of her interest altogether; and viee versa.

Nor does this contention rest on argument alone, for the Code provides that the husband “ can make no conveyance inter vivos by a gratuitous title of the immovables of the community, nor of the whole, or of quota of the movables, unless it be for the establishment of the children of the marriage.” R. O. C. 2404.

While this article primarily applies to strangers and third persons, yet it may be applied with equal propriety to a partner in community. While “the husband is the head and master of the community,” and may dispose at will, or alienate its effects “by an onerous title,” he can not divest his wife of her interest “by a gratuitous title.”

The effect of this provision of law is, that the donation made by John T. Moore to his wife had the effect of conveying to her only the undivided community half interest in the bonds which he owned, and no more.

If, as counsel insist, the value of the bonds is “fictitiously added to Mr. Moore’s estate, and not to the community, the immediate effect of it would be to transpose from the wife to her husband’s heirs $63,000, without any donation or testamentary disposition to that effect.

Had the donation been made to a stranger, the rule would have been just the same. Had Mr. Moore made no donation at all, and the $100,000 of government bonds remained on hand, in kind, certainly they would not have been inventoried as his separate property at his death; then, in what manner an excessive donation of them can convert them into separate property, is not easily perceived.

The quotation counsel for opponents makes from page 541 of 40th Annual — Succession of Moore — announces no adverse doctrine. Its true meaning is that, “the mass of the succession must be composed of the separate property of the deceased, of his share of the common property, and of his share in the value of the effects donated at the time of his death.” We have supplied a manifest ellipsis by adding the italicised words.

It was incorrect to have omitted from computation the amount of the donation to Mrs. Gibbons of $5850. We think it best that we should recast our calculation and include it.

Total assets of community ----- $284,090 05

Value of government bonds ----- 126,000 00-

Donation to Mrs. Gibbons - - - - 5,850 00

Aggregating.......$415,940 05

Community debts deducted ----- 11,480 66

Net community assets, one-half - $404,459 39

Widow’s one-half ------ $202,229 69¿

Net amount of deceased’s estate is composed of one-half of community assets of - $202,229 691

His separate estate - - - 7,000 00

Aggregating.......$209,229 69¿

Disposable portion, one-third - 69,743 23£

The legitime will be _____ $139,486 462

Of this sum each one of the nine heirs will be entitled to one-ninth or $15,498.49, and to each of said nine heirs’ shares the usufruct of the widow attaches.

This calculation has slightly altered and increased the respective shares of the widow and heirs, and our decree must be altered so as to correspond therewith; but for this purpose a rehearing is deemed unnecessary.

It is therefore ordered and decreed that our former decree be set aside and recast, and that it is further ordered and decreed that the judgment appealed from be so amended as to fix the disposable portion at the sum of $69,743.23; the amount of the legitime of the heirs at $139,486.46; and the respective shares of the heirs at $15,498.49.

It is finally ordered and decreed that as thus amended said judgment and decree appealed from be affirmed, and that all costs be taxed against the succession.

Fenner, J., takes no part, not having participated in the original decision.


text:
    No. 10,531.
    Hebert & Damare vs. Maxime Dupaty et als.
    In the sale of the effects in any business where an itemized account is made and a valuation is attached to each item, and no mention is made of the “ good will” of the business, evidence can not bo received to contradict the written act of sale so as to show that the “good will” formed a part of the act of sale.
    A stipulation in a lease of premises on which a certain business has been caifc'ioil on that the lessor will not pursue the same occupation in the same neighborhood is a personal obligation of the lessor. If ho sells property, a part of which is the leased premises, and the purchaser put up buildings on the purchased property, opposite to the leased portion, and carries on the same business as that on the leased ground, the obligation of the original-lessor, his vendee, does not affect him, and ho can not be enjoined for this reason from carrying on said business.
    APPEAL from the Twentieth District Court, Parish of Assumption. Guión, J.

      L. M. Folse & Sons and Pugh, Pugh & Marks for Plaintiffs and Appellants.

      W. F. Howell for Defendants and Appellees.
   The opinion of the court was delivered by

McEnery, J.

Since the submission of this case one of the plaintiffs, Hebert, has died, and the duly appointed and qualified administrator of his succession has been made a party plaintiff and apellant, in the place of said deceased, Emile S. Hebert.

One of the defendants, Máxime Dupaty, kept a livery stable in the town of Napoleonville. He was a popular proprietor of the establishment, and did a thriving business. This fact induced the plaintiffs, Hebert & Damare, to purchase the outfit of the stable, consisting of horses, harness and vehicles.

The sale was perfected on the 9th of February, 1887. In the act of sale Dupaty leased the premises on which the stable was located for a term of five years to the plaintiffs, with the privilege of renewal. The following clause is in the lease: “The lessor' binds and obligates himself not to keep a public stable during the term of said lease, either directly or indirectly, within a radius of six miles of Napoleonville.”

Dupaty sold to Dugas, another defendant, certain ’property in the town of Napoleonville, which included that leased by Hebert & Damare from Dupaty. Dugas sold his property to William L. Phelps, the last defendant. Phelps and Dugas are brothers-in-law. In the act of sale by Dupaty to Dugas, plaintiff’s lease is referred to, and it .is stipulated as an additional consideration of the sale, that the vendor, Dupaty, sold to Dugas, his heirs-and assigns, the revenues of the lease during its duration, and all other benefits arising therefrom. Phelps has collected the revenue from the leased premises of the plaintiffs.

These acts of sale and lease were recorded, and the parties all knew of the terms and conditions of the sale from Dupaty to the plaintiffs. Phelps erected, established and conducted a livery stable directly in front of the stable of plaintiffs. They are rival establishments.

This suit is brought to recover $10,000 damages against defendants for the establishment and conducting of said livery stable business. In substance the allegations in the petition are that Dugas and Phelps having full knowledge, due notice, and being well aware of the lease of petitioners and all of its stipulations, as well of the sale by the said Máxime Dupaty to petitioners, that the said Dupaty, who was bound not to keep, during the pendency of the said lease, a public livery stable, either directly or in directly within a radius of six miles of the town of Napoleonville, went to the said Dupaty and entered into a conspiracy with him, and they colluded together to crush and ruin the petitioners in the business of public livery stable, by erecting, establishing and conducting the public livery stable on the premises purchased by said Phelps from Dupaty.

Testimony was offered and admitted to show that the “ good will” of the livery business carried on by Dupaty was also sold to the plaintiffs. It was admitted, that the sale from Dupaty to plaintiffs enumerates every item, with a valuation, sold to plaintiff. Nothing is said in the act of sale of the “ good will” of the establishment. The evidence was inadmissible, as it added to and contradicted the written act of sale, in which there was no ambiguity or uncertainty. But admitting that the “good will” of the business was sold to plaintiffs it could not have any bearing in the case.

The stipulation of Dupaty was not to keep a public livery stable within a radius of six miles of the town of Napoleonville. There is no evidence whatever in the record that he has done so; nor is there any evidence that he is in any way interested in the stable conducted by Phelps.

The record fails to show that there was any collusion between the defendants to injure the plaintiff's. Dupaty was compelled to sell the property to pay a mortgage debt of $2000 upon it, which was past due, and for which a demand had been made upon him.

Phelps had been conducting a livery stable at an undesirable locality, and availed himself of the opportunity offered, to purchase the property from Dupaty, a part of which was leased to plaintiffs.

He did not have sufficient means. His brother-in-law, Dugas, agreed to furnish him the money, and he sought advice as to the means of securing himself. He was instructed to purchase it in his own name, sell to Phelps and retain the vendor’s privilege and a special mortgage for the price. All'the defendants under oath deny any intention to injure plaintiffs, and Phelps especially, except in a fair competion for patronage. No evidence is offered to contradict this.

The contention of plaintiffs that Dugas and Phelps, by purchasing from Dupaty, became bound as Dupaty was, not to keep a public livery stable within a radius of six miles of the town of Napoleon-ville, can not be maintained. We do not see in what manner or process of reasoning we can arrive at the legal responsibility of defendants as contended for by plaintiff.

On this point in the case the decision of the judge a quo is exhaustive. In his opinion he says:

“Dupaty did not stipulate that no livery stable should be kept on-the balance of the property during plaintiffs’ lease, but that he would not keep a livery stable himself directly or indirectly during that time. It was not a burden that he placed upon the property itself, but an obligation that he imposed upon himself.

“Viewing the obligation of Dupaty, therefore, as one entirelypersonal, it is a self evident proposition that neither Dugas nor Phelps became in any manner bound to plaintiff not to keep a livery stable unless they contracted the same obligation by the terms and stipulations of the two sales of 28th July, 1889. It is not to be presumed that Dr. Dugas or W. L. Phelps intended to assume the personal obligation of Dupaty, when, as plaintiffs themselves say, the very object of Phelps in acquiring the property was to put up a livery stable upon it. Such an intention on the part of Dugas and Phelps is entirely unreasonable.”

There is no error in the judgment, and it is therefore affirmed.


author: Bermudez, O. J. Bermudez, C. J.

text:
    No. 10,476.
    E. W. Huntington vs. Jacques Bordeaux. Pascal Lestelle, Warrantor.
    The Supreme Court has jurisdiction over a controversy between a defendant, calling liis vendor in warranty, in a petitory action, when defendant avers in his answer that the property from which plaintiff seeks to evict him, is worth more than $2000, and ho asks judgment eventually against his warrantor for that sum.
    A judgment rendered, declaring a surety good and solvent and allowing an appellant to furnish a new bond, can not bo reviewed on a motion made in the appellate court to dismiss the appeal taken from the judgment on the merits of the controversy.
    Such first judgment remains undisturbed until reversed on appeal therefrom.
    A sheriff’s adjudication of real estate must be recorded in the conveyance oilier in order to bind third parties.
    A transfer of the property thus adjudicated by the defendant to a party, not notified of the adjudication by such registry, conveys the property to the purchaser. .

      A plaintiff in a petitory action against one in possession can recover only on tlie strength of his title and not on the weakness of that of his adversary.
    APPEAL from the Oivil District Court, Parish of Orleans. J.

      Octave Morel and Horace L. Dufour for Plaintiff and Appellee.

      J. H. Ferguson and A. Brieugne contra.

   On Motion to Dismiss.

The opinion of the court was delivered by

Bermudez, O. J.

The plaintiff moves the dismissal of this appeal on the following grounds, viz:

1. The value of the property in dispute is less than $2000 and this-court has no jurisdiction ratione materise.

2. The bond furnished originally in tb£ court a gua was insufficient - for a suspensive appeal, and said court was without power to allow a new bond.

I.

The action is petitory in. character. The petition states the value of the property to be $1200; but the answer sets it at $2500.'

After asserting the validity of the title, the defendant called in his vendor in warranty, asking a judgment against him eventually, for $2500.

By its judgment, the lower court evicted defendant and condemned the warrantor to pay $1200.

The defendant did not appeal, but the warrantor has. The effect of such appeal, as far as the plaintiff is concerned, need not be considered presently, except to note that the plaintiff has an interest'at stake, and therefore to seek the dismissal.

The matter at issue between the defendant and the warrantor, appellant, on which the lower court passed, and which comes up by the appeal, is the amount claimed from the warrantor, namely, $2500.

By the pleadings between the defendant and the warrantor, the case was made appealable, and the judgment in the issue between them could have been appealed from by either or both.

The value of the property claimed is no factor in the examination of the first ground of the motion to dismiss. It may acquire significance on the merits of the controversy; but only if it be true that the plaintiff has a good title to the revendicated property, for then ■ the defendant, being evicted, would be entitled to recover from his vendor at least for the value of the property paid to him.

It is evident that, as the pleadings stand, between the defendant and the warrantor, who is the appellant, this court could, circumstances justifying, render a judgment for the amount claimed by the former, on his call in warranty, from the latter, viz-: $2500.

The first ground is therefore untenable.

II.

Having jurisdiction over the matter in dispute, this court has authority to inquire into the merits of the second ground, relied on for the dismissal of the appeal, which relates to the insufficiency of the bond furnished originally, and to the lack of power in the judge to .allow another one to be given in place.

The record shows that the plaintiff and the defendant have, in a joint motion in the court a qua, moved to dismiss the appeal granted, on the grounds of the insufficiency of the surety and bond, contending that the original surety being insufficient in amount, the court had no authority to allow the warrantor and appellant to furnish another.

The District Court held that the surety was good, and that it had •authority to act as it did.

No appeal has been taken from that judgment.

Its correctness can not be tested by the motion to dismiss made in .this court, and now under consideration.

It will remain undisturbed until reversed on appeal.

The motion is denied.

On the Merits.

Bermudez, C. J.

This is a petitory action against one in possession.

The plaintiff claims title through a sheriff’s adjudication, to a seizing creditor, to whose rights he was subrogated.

He charges that the defendant claims title from one who acquired .the property at a tax sale; but that this sale is an absolute nullity, for several reasons, one of which is, the insufficiency of the description of the property.

The defendant denies, avers a good title in himself, but calls his vendor in warranty.

The latter upholds the validity of his title, not only under the tax deeds made to him by the collector, but under a transfer of rights to him, by the owners of the property in the tax deeds.

There was judgment for plaintiff, evicting defendant, condemning the warrantor to reimburse the purchase price received by him and reserving certain rights.

This judgment is brought up for review.

The only evidence adduced by plaintiff to show title, consists in the sheriff’s return, which establishes adjudication to his author; but there is no proof whatever that any instrument of writing, not even a proces verbal, was recorded in the conveyance office, so as to notify third person that the defendant in the case had been expropriated and that his title had passed to the adjudicatee.

It appears that, subsequently, the same property was seized and advertised by the tax collector, for back taxes, and that it was by him adjudicated to the warrantor. Two deeds, duly recorded, were delivered, containing a description of the property. Four lots were described in one deed and ten in another, all in the same square.

In each act, the delinquent parties, wife and husband, in whose name the title stood, intervened and, for a valuable consideration, ratified the sale, transferring all their rights to the adjudicatee.

The alleged insufficiency of the description of the property in the advertisements of the tax collector, and in the deeds executed by him, is no factor in the case. The property claimed by the plaintiff is admitted by him, by this very suit, to be that in defendant’s possession, and adjudicated at the tax sale to the warrantor, for he seeks the former’s eviction from it, and the defendant and the warrantor admit the identity, insisting on their titles to the same.

' Pretermitting the question of the nullity charged of the assessment of the lots, in the proceedings and in the adjudication, the stubborn fact remains that the property, by its undisputed owners, was transferred to the warrantor and by him to the defendant, who has since been in possession of it.

The only question in the case is whether, at the time of the transfer, the purchaser had notice of the expropriation by the sheriff’s adjudication.

It is clear he had none, for the plain reason that nothing had previously been put on record on the conveyance books to show that expropriation and adjudication.

The law distinctly provides that, in the City of New Orleans, it shall be the duty of the sheriffs to cause to be recorded in the conveyance office all judicial sales of real property made by them (C. P. 697, R. O. C. 2265), and that all sales not recorded shall be utterly null and void, except between the parties thereto, registry to affect third persons only from-the time of recording. R. C. C. 2266; 14 An. 117, 416; 22 An. 114.

It is well settled that; in an action in revendication of real estate in possession of another, the plaintiff must recover on the strength of his own title and not on the weakness of that of his adversary. C. P. 44.

It is therefore ordered and decreed that the judgment appealed from be reversed; and it is now ordered and decreed that there be judgment rejecting the demand of plaintiff and quieting the defendant and warrantor; plaintiff and appellee to pay costs in both courts.