author: Cole, J.

text:
    George Gottschalk, Bertrand Saloy, Subrogated, v. B. De Santos et al.—P. A. Lanauze, Third Opponent.
    By Art. 763 of the Code, which declares: “ The use which the owner has intentionally established on a particular part of his property in favor of another part, is equal to a title with respect to perpetual and apparent servitudes thereon, is meant the disposition which the owner of two or more estates has made for their respective use.
    The intention to create a servitude for the respective estates, will not suffice, nor will it suffice that it was partially established, it must have been perfected in such a manner as to be useful to the adjacent lots.
    Where a party is present at a sale of property by the Sheriff, and does not notify the persons present, nor the purchaser, of his rights, he cannot afterwards set up a claim to the property.
    from the Fourth District Court of New Orleans, Reynolds, J.

      G. & O. E. Schmidt, for plaintiff and appellant.

      J. L. Tissot, for defendants.
   Cole, J.

Bernard Be Santos was formerly the proprietor of four contiguous lots, numbered on the plan 1, 2, 3 and 4, having each an equal depth, and all of them fronting on St. Ann street, and No. 1 running parallel with St. Claude street.

During the time of his ownership of said property, he sold to A. Roger lot No. 1, less 5 feet, 6 inches and 6 linos in the rear of said lot, which he reserved, but he conceded to his purchaser a perpetual servitude of passage.

Afterwards he mortgaged lots 2, 3 and 4, and in default of payment of the mortgaged debt, they were sold and adjudicated to P. A. Lcmcmze.

G. Gottschalls and B. Saloy being creditors of Bernmd Be Santos, caused the said alley-way to be seized; Lcmcmze intervened and opposed the sale, claiming it as his own.

Lcmcmze bases his title on the ground that the reservation of this alley-way in the sale to Roger, whilst he was proprietor of the four lots, was la• destination du píre de famille, or a use which Be Santos intentionally established on lot 1 for the respective use of the four lots; that lots 2, 3 and 4 had been mortgaged with all their privileges and appendages, sold judicially to satisfy the mortgage, and adjudicated to him with all their privileges and appendages ; that this alley-way being of that character, was consequently adjudicated to him with the lots, and is his property, with the reservation however of the right of passage to Roger.

The question in this case is whether this passage or alley-way was intentionally established by Be Santos for the respective use of the four lots.

It is probable that his intention in creating this alley-way was originally for the benefit of his three adjoining lots, or at least for one of them, to wit, lot 2, because he had no property in the vicinity, and in selling the lot in front of the alley to Roger, he did not sell it to him, but only gave him the right of passage. What other use could he have had for it then, except for the use and convenience of the whole or a part of his other three lots ?

This is not called a servitude, but “ destination du pére de famille,” or the use which the owner has intentionally established on a particular part of his property in favor of another part, and which is equal to a title with respect to perpetual and apparent servitude thereon, and by this “destination du pére de famille,” is meant the disposition which the owner of two or more estates has made for their respective use. C. C. 645, 763.

But the question now arises, whether the intention of a proprietor of contiguous lots, to make some convenience for their respective use, can be considered as a “ destination du pére de famille,” when such intention is not carried into complete execution.

In order to determine this question, the nature and effect of this “destination du pére de famille ” must be examined;

1st. This disposition of the owner for the advantage of his contiguous lots is equal to an alienation, for the Civil Code, Art. 727, says, “the creation of a servitude is an alienation of a part of the property,” and although Art. 645 C. C. says that the application which the owner makes of one estate to the advantage of another, is not called a servitude, but a disposition of the owner, still it is in reality a servitude.

Por Art. 763 C. C. says: “ The use which the owner has intentionally established on a particular part of his property in favor of another part, fs equal to a title with respect to perpetual and apparent servitudes thereon. By this is meant the disposition which the owner of two or more estates has made for their respective use.”

Art. 765 O. O. says : “If the proprietor of two estates between which there exists an apparent sign of servitude, sell one of those estates, and if the deed of sale be silent respecting the servitude, the same shall continue to- exist actively or passively in favor or upon the estate which has been sold”

Prom these Articles of the Civil Code, it is clear that the “ destination du pére de famille ” is equal to an alienation of property, and as the rule is that he who claims the property of another, must show a title, so he who claims a servitude of the character now under consideration, must show a title to the same ; that is, he must establish clearly that, not only was it once the intention of the proprietor of several contiguous lots to establish a servitude for their respective use, but that he actually executed his purpose by making' such changes in his property, that this servitude could be beneficial to all the lots.

As this servitude is an abandonment of property, an alienation, and equal to a title, it must not then be intended only or partially established, but must be perfected in such a manner that it can be useful to the adjacent lots.

It is true that Art. 646 C. C. says that it is not necessary that the benefit from the servitude exist at the time of the contract, “ a mere possible convenience or remote advantage is sufficient to support, a servitude;” but this does not militate against our view, because this Article takes it for granted that the servitude has been established, and this is what is denied in the case at bar.

Now, in the case at bar, the alley-way extended only in the rear of lot 1. If it had been intended for the use of the other three lots, would not Be Sa/ntos have continued it the whole length in the rear of'lots 2, 3 and 4 ?

If Be Santos had built houses on those lots, and had extended the alley-way their whole length, and if there had been doors or gates communicating from each, of thfe houses into this alley-way, therl the servitude would have been clearly established; but nothing of this kind was done. It may be that such was his intention, in whole nr in part, in the event he had continued the proprietor of lots 2, 3 and 4; ™ t as he was deprived of them by a forced sale, before his intention had been carried into execution, it would be unjust to consider this intention, which was conditional, depending on his continued ownership of the remaining lots, as an alienation and equal to a title, and thus to deprive him of this alley-way. It should also be observed that this passage was not necessarily an apparent servitude for the three other lots, because often one house has an alley-way restricted entirely to its own use, and not extended so as to benefit the adjacent lots.

We could also remark that, unless this alley was extended, it could only benefit lot 2, in the event it had a door opening into it, but could not he of utility to lots 3 and 4, uniess they belonged to the same proprietor. Now it may be if Be Santos had remained owner of lots 2, 3 and 4, he would have had a door opening from his house on lot 2, into this alley, which he might have done without extending it, but would have made no communication between the houses he might erect on lots 3 and 4. How then can this alley be considered a servitude for the use of lots 2, 3 and 4, when it may be he would only have made it useful to lot 2, or if his intention had changed, he might not even have had any communication between the house on lot 2 and this passage ?

íft should also be remembered that this alley-way was not necessary to lots 2, 3 and 4, because they front on St. Ann street, and Lcmmze, the opponent in this suit, would have bought these lots, even if the servitude of the alley did not appertain to them, because the testimony establishes that for some time after his purchase, he was under the impression that he had no right to this alley. Neither was there anything said expressly about this servitude in the mortgage of these three lots, nor in the Sheriff’s sale to Lancmze, when a title was made to him, after they had been sold to satisfy the mortgage, and adjudicated to him.

As then the alley-way was not expressly mentioned in the mortgage, unless it is considered an apparent servitude, it was not necessarily one of the dependencies or appendages of the lots, and could not then have been mortgaged with them, and consequently it was not sold by the Sheriff to Lamauee, for the latter could have no greater rights than Lambert, the mortgagee.

We are of opinion then that this passage cannot be considered as established for the common benefit of these four lots, nor as a “destination du pére de famille,” and that i?was not adjudicated to L,emauee at the Sheriff’s sale. But even if it is considered a servitude established for the use of the four lots, and was purchased by Lana/use at the Sheriff’s sale of the three lots, as Lamauae was present at the Sheriff’s sale of this alley-way, and did not notify the persons present, nor the purchaser, of his rights, he cannot now succeed in his present claim. 5 An. 67, Moore v. Lambeth; ih. 367.

Vide 7 An. 652, Fisk v. Haber; 11 L. Broussard v. Etie; 8 An. 145, Parish et al. v. Municipality No. 2 et al.; 1st An. 407, Durel, Adm. v. Boisblanc et al.; C. C. Arts. 645, 646, 725, 727, 764, 765; 4 L. R. 312, Alexander v. Boghel; 5 R. 16, Barton v. Kirkman.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed, and it is ordered, adjudged and decreed, that the third opposition of P. A. Baname and his demand be rejected, and that he pay the costs of both courts.


source: Caselaw Access Project

license: Public Domain

text:
    Joseph L. Miller et al. v. J. C. McElwee and Warrantors.
    The plaintiffs in a petitory action claimed to have derived their title by inheritance from their grandmother, who they alleged inherited the property from her husband, Thomas Bally, who ¿lied intestate. The instructions to the jury were: “ That it was sufficient for tibe plaintiffs, in default of affirmativeproof, showing that Thomas Baity died without leaving an/y ascendants, to show that one hundred years had elapsed between the birth of the nearest ascendant of said Thomas Baity and the institution of this suit. That in order to ascertain whetlber one h/undred years had elapsed from the birth of such ascendant to the time of the institution of this suit, it was sufficient for tibe jury to talco into consideration the age of the witness, the length of time since tibe death of Thomas Bally, his age when he died, and the age that his father must necessarily hare been at tibe time of the birth of Thomas Bally, and that no direct proof of the time of the birth of the father or otlber ascendant of Thomas Batty was required.''

    It was held that the charge was substantially correct. It suffices to deny that there are heirs in the descending line, and this being a negative, no proof need be given of it. But collaterals must always prove the death of ascendants by evidence, or show that one hundred years had elapsed since the death, in which case death is presumed, and not before.
    It was also held that the lapse of one hundred years from the birth of Thomas Bally's ascendants to the date of the institution of the suit, was sufficient presumptive evidence to establish that they were not in existence at the death of Thomas Bally, controversy being one between the heirs of Thomas Bally’s wife and the defendant claiming without any title whatever.
    APPEAL Jury. from the District Oourt of West Feliciana, Bailiff, J. Tried by a

      H. G. Hudson, for plaintiffs.

      Me Vea and Brewer & Gollins, for defendants and appellants.
   Cole, J.

This is a petitory action. The plaintiffs claim to he owners of a tract of land in the possession of the defendant.

The answer is a general denial and a call in warranty. The prescription of one, three, ten, twenty and thirty years is also pleaded.

The case was submitted to a jury, who rendered a verdict for the plaintiff, and from a judgment thereon defendant appealed.

Defendant seems to rely on the inability of plaintiff to make out a title, rather than on any one in himself.

The plaintiffs claim to have derived their title by inheritance from their grandmother, who was the wife of Thomas Bally, who, they allege, derived title by inheritance from her said husband, who died intestate.

The land claimed by plaintiffs appears to he in the “Tilmas Bally claim,” and is not embraced in the titles of defendant.

There were conflicts between the Bally claim and other claims contiguous to it. These have been adjusted by the Register and Receiver of the Greensburg Land District, sitting as a Board of Commissioners.

The title to the land covered by the “Bally claim” for 640 acres, was in the government of the United States, until confirmed by the Act of Congress of August 6th, 1846.

The survey of these claims, and the settlement of the conflict of boundaries, were under the exclusive control of the officers of the general government. The survey which they have made and the shape which they have given to the Bally claim are conclusive upon the parties.

As the land claimed hy plaintiffs is in the Bally claim, if then they can establish their title by inheritance from Thomas Bally they are entitled to recover, unless the plea of prescription can prevail.

The validity of plaintiffs’ title depends principally on the solution of a question set forth in a bill of exceptions of defendant to the ruling of the lower court, which is as follows:

“Be it remembered, that on the trial of this cause the counsel for the defendant moved the court to charge the jury as follows:
“If you find that there is no evidence to show that Thomas Bally left no ascendants, and no proof that one hundred years have elapsed between the date of the birth of the nearest ascendant and the time of the death of said Thomas Bally, then and in that case you should bring in a verdict against the plaintiffs.
“That the plaintiffs claiming to have derived title hy inheritance from their grandmother, who was the wife of Thomas Bally, and claiming that she derived title by inheritance from her said husband, who died intestate, the burden of proof was on the plaintiffs to show that Thomas Bally died without leaving any ascendants, or to show that one hundred years had elapsed between the birth of said ascendants and the death of said Thomas Bally."

Which the court refused, and proceeded to charge the jury: “ That it was sufficient for the plaintiffs, in default of affirmative proof, showing that Thomas Bally died without leaving any ascendants, to show that one hundred years had elapsed between the birth of the nearest ascendant of said Thomas Bally and the institution of this suit. That in order to ascertain whether one hundred years had elapsed from the birth of such ascendant to the time of the institution of this suit, it was sufficient for the jury to take into consideration the age of the witnesses, the length of time since the death of Thomas Bally, his age when he died, and the age that his father must necessarily have been at the time of the birth of Thomas Bally, and that no direct proof of the time of the birth of the father or other ascendant of Thomas Balky was required.”

We are of opinion that the ruling of the Judge a quo was substantially correct.

The doctrine of this court, as established in several cases, is that “it suffices to deny that there are heirs in the descending line; and this being a negative fact, no proof need be given of it. It is for the adverse party to show that there were some, and then their death must be proved by the claimants. But collaterals must always prove the death of ascendants by evidence, or show that one hundred years elapsed since the birth; in which case death is presumed, and not before.” Vide C. C. 71, 77; Bernardine v. D’Espinasse, 5 N. S. 715.

In this case, as plaintiffs claim this land by inheritance from their grandmother, who was the wife of Thomas Bally, and who, they allege, derived title by inheritance from her said husband, who died intestate, it is incumbent on them to establish that their grandmother had a title to this land. If she was suing for it, she would be obliged to show not only the death of her husband, but also of his ascendants; plaintiffs claiming under her must make the same proof, and also establish her death.

The death of ascendants may not only be proved by direct testimony, but also by showing that one hundred years have elapsed since their birth. 5 N. S. 115.

Plaintiffs had then the right to show the length of time since the death of Thomas Baity, his age when he died, and the age that his father must necessarily have had at the time of the birth of Thomas Baity, and thus establish whether or not a hundred years had elapsed since the birth of the first one in the ascending line from Thomas Bally.

Defendant urges that if a hundred years had not elapsed at the time of the death of Thomas Baity, then that the grandmother of plaintiffs could not have inherited, for if, at the time of Baity's death, his ancestor was living, then such ancestor was called to the inheritance to the exclusion of the wife.

They further declare that plaintiff must either show affirmatively that at the time of the death of Bally his ascendants were not living, or that at the time of his death a sufficient length of time had elapsed from the birth of the ascendant to raise the presumption of death, for if his ascendants were living at the period of his decease, they would inherit to the exclusion of the wife, and if she was not the heir at the time of her husbend’s death, she could not become the heir by the length of time that had elapsed between the date of his death and the institution of this suit, or by any other matter subsequent to the opening of the succession.

We cannot coincide entirely with the argument of defendant. It is clear if an ascendant of Baity was living at the time of his death, his wife could never inherit. But we are of opinion if a hundred years had elapsed between the birth of the ascendant of Bally and the time when the heirs of his wife claim his estate, that this is sufficient, for it is presumptive evidence that no ascendant of Baity was living at the time of his death, else this ascendant would have claimed the estate.

Defendant wishes to keep possession of property for which he has no title, by forcing plaintiff to prove that at the time of Baity's death his ascendants were not living. Wo think that the lapse of one hundred years from the birth of his ascendants to the institution of this suit ought to be sufficient presumptive evidence to establish they were not in existence at his death, when the controversy is between the heirs of his wife and one claiming the property without any title whatever, for if such ascendants had been in existence, it is reasonable to suppose they would already have claimed it.

We are of opinion that plaintiffs have established prima fade a right to inherit from Baity through their father and grandmother, and that their prima Jade title', accompanied with the fact that their grandmother lived upon the land until she removed from the State, must prevail against defendant, who has no title whatever.

The plea of prescription cannot prevail, as no possession sufficient to be the basis of prescription is shown.

The defendants have no claim against those called in warranty: the land sold by them is not the same that is claimed by plaintiffs.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be affirmed, with costs.


author: Buchanan, J. Merbick, O. J.

text:
    Heirs of Guillotte v. City of New Orleans.
    The plaintiffs being joint owners with the city of the land on which the Magazine street market is erected, and having recovered a judgment against the city fixing their right to a certain proportion of the revenues of the market, the city obtained an order for a sale of the property to effect a partition, and the Council passed a resolution to discontinue the market as a public market. Held: That the plaintiffs are entitled to enjoin the execution of the ordinance as an invasion of their right of property and a violation of the tenure and contrary to the title by which the city holds an interest in the the property, as established by the judgments between the parties.
    APPEAL from the Fifth District Court of New Orleans, Augustin, J.

      S. F. Ogden and F. Miisson, for plaintiffs.

      J. J. Miehel, for defendant and appellant.
   Buchanan, J.

Plaintiffs having sued the city of Lafayette, to whose rights and obligations the defendant has succeeded, in a petitory action, claiming certain land on which the city had erected a market-house; that suit was terminated by a judgment of the Supreme Court in May, 1850, decreeing that plaintiffs recover of defendant one undivided half of the said land. See the case reported in 5 An. 882.

Plaintiffs afterwards sued the city for the fruits and revenues of the property thus recovered, and by final judgment of the Sixth District Court of New Orleans, rendered in December, 1853, it was decreed, “that plaintiffs recover of defendant the sum of $2982 15, and further that plaintiffs recover of defendant in the proportion of one to two sixty-hundredths of the revenues of the property mentioned in the petition hereafter at such times as the revenues may be received.”

Plaintiffs and defendant have continued ever since the last mentioned judgment to occupy the property and divide its fruits and revenues in the proportion fixed by the judgment. But the city of New Orleans, having become tired of this joint ownership and occupation, brought suit against the heirs of Guillotte, on the 10th of May, 1855, for a partition of the property (described in their petition as consisting of the land, a large and valuable market-house, known as the Magazine street market, and the rents, profits and revenues derived from said market,) by licitation; alleging that the same cannot be divided in kind.

In that suit a judgment of nonsuit having been rendered against the city in the District Court, the city appealed, and succeeded in obtaining (in November, 1856,) a decree of this court, reversing the judgment of the District Court, and ordering that there be a partition of the property held in common, by public sale to the highest bidder, after legal advertisements, and upon such terms as the parties shall agree upon, or in case they cannot agree, the terms of sale to be fixed by the District Court.

Thereupon the City Council of New Orleans passed the following resolution, which was approved by the Mayor:

“Whereas, the property now occupied by the Magazine street market, corner of Magazine street and St. Mary street, is to be sold in order to effect a partition under a decree of the Supreme Court, rendered in the case of The Gity of New Orleans v. The Heirs of Guillotte—
“Therefore be it resolved, that from and after the first day of March, 1857, the said Magazine street market shall be discontinued as a public market of this city.”

The plaintiffs have enjoined the execution of this ordinance or resolution of the City Council, as being calculated greatly to injure plaintiffs’ rights. They allege, with reason, that the principal value of the property sought to be partitioned consists in its character of a market. It is shown that the revenue derived from this market is steadily and rapidly increasing from year to year, having augmented from seventeen hundred and fifty dollars in 1848 to thirteen thousand three hundred and fifty dollars in 1856. Of this revenue five-eighteenths belong to plaintiffs by the terms of the judgment which has fixed the rights of the parties, a proportion which in 1856 amounted to $3708 33, while the share of the defendant for the same year was $9641 67. And note that there is a certainty of this income becoming larger, based on the experience of the past, as contained in the Comptroller’s reports in evidence.

The resolution of the City Council, of which the plaintiffs complain, at once cuts off this large and increasing revenue, for the market-house is of no value as a means of revenue if the market kept there be discontinued, it being nothing more than a roof supported by columns, and open at all sides.

So far as the interests of the city are concerned, it might be conceded that the Council, as the administrator of the city finances, had the right to do this, however injurious to the city pecuniarily, and however inconvenient and vexatious to the inhabitants of the populous district which resorts to this market for its daily supply of provisions.

But there are other parties which have a vested right in this market and its revenues wliich the City Council will not be allowed to disregard or to sacrifice. Those parties are the plaintiffs, who have sued out this injunction against the execution of the resolution in question.

It appears to us that the resolution of the 7th January, 1857, copied above, is a direct and palpable invasion of the plaintiffs’ right of property; that it is violative of the tenure and contrary to the title by which alone the city holds an interest in this property. That tenure and that title are found in the judgments of May, 1850, and December, 1853, above recited.

The resolution is likewise contrary to the intent and meaning of the judgment of this court, rendered in November last, in the partition suit, and will, if carried out, render the licitation, which has been decreed on the prayer of the city itself, nothing but a mockery and a delusion.

Judgment affirmed, with costs.

Mr. Justice Cole took no part in this decision.

Merbick, O. J.

I do not think the City Council ought to be permitted to change the destination of the common property during the progress of the proceedings for partition, for this would be especially injurious to both parties. I understand the law to be the same in regard to partners and to property held in common. The courts will not permit a partner to withdraw at an improper time, nor a co-proprietor to change the destination of property when it will occasion one or both parties great damage unless a reasonable notice of such intention has been previously given. On this ground I concur in the decree.

But if the doctrine of the opinion is to he understood to be that the city is not the absolute owner of whatever property it may own in fee simple in the market, as fully as any other co-proprietor, and that the city cannot regulate the times and. places where markets shall be held, and discontinue old and establish new ones, and that the purchaser of'.the common property of these parties, sold to effect a partition, can continue it as a market in spite of the city, after the same shall have given a reasonable-notice, then I dissent from the doctrine asserted by the majority of the court. For it is not in the power of the courts to impress upon property a particular character, and declare that a place shall remain a market, or a plantation now cultivated in cane shall remain a sugar plantation forever, or the like. The purchaser of the market in my opinion will only acquire the fee simple in the soil and buildings, with the right to do whatever he pleases with his property not prohibited by law and the legal ordinances of the City Council.


author: Merrick, O. J.

text:
    Mrs. Lucy Ann Howe v. City of New Orleans et al.
    A judgment rendered against two or more parties for damages, arising from the fault or negligence of the defendants, cannot be for different amounts; for they are bound in solido for the injury under the Act of 1844, (p. 14,) and the amount of damages for which one party is bound is the measure of damages for the other also. The payment of the damages by the one is the discharge of the other from the same obligation. O. O. 2180.
    Nuisances may exist in the city without rendering the same liable for the consequences.
    The city is no general warrantor against the acts of individuals.
    The city at large cannot be held responsible for acts of third persons, which, under a more sagacious and efficient police, might possibly have been prevented.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J. — Tried by a jury.

      Wcoples & Rustís, for plaintiff.

      J. Livingston, for defendants and appellants.
   Merrick, O. J.

This suit is brought by the plaintiff against the city of New Orleans, Qhan'les Mason and Mrs. Gh'ailhe, to recover of them in soUdo the sum of $15,000 damages occasioned the minor son of the plaintiff, by the falling of a wall upon the minor, who was walking along St. Charles street, in this city.

The case was tried by a jury, who found a verdict against Mrs. Gh'ailhe of $2500, and against the city of Now Orleans for $7500, and in favor of Mason. It is difficult to sustain this verdict as it stands, for if the falling of the wall of the burnt building is attributable to the fault or negligence of both defendants, then they are bound in solido for the injury under the Act of 1844, (p. 14,) and the amount of damages for which one party is bound, is the measure of damages for the other also. The payment of the damages by the one is the discharge of the other from the same obligation. C. O. 2130. If, therefore, the measure of damages for the injury occasioned by Mrs. GraAThe, the owner of the property is $2500, the city is not bound for a sum beyond that amount. Assuming the more lenient verdict against Mrs. Grailhe to be just, the verdict against the city is manifestly erroneous. We will consider whether it can bo maintained for any amount upon the evidence in the record.

The testimony shows that the City Surveyor, who had the power to cause the wall after the fire to be taken down, was aware of the fire; that he observed the condition of the wall from the street repeatedly, and was of the opinion that the public were in no danger from its falling, but he never entered upon the premises in order particularly to ascertain its condition.

The liability of the city is argued by the learned counsel for plaintiff, from these propositions, viz:

1st. The walls of the building after the fire wore a nuisance, and as deductions therefrom—

2d. That it was the duty' of the city to remove the nuisance.

3d. That the city ought to have fenced off the sidewalk.

4th. That it is no excuse for the city that its officials thought the wall would not fall.

The first proposition, we think, may be admitted without giving rise to the deductions drawn therefrom by the counsel.

Nuisances may exist in the city without rendering the same liable for the consequences. The city is no general warrantor against the acts of individuals. Its police may be applied to for the purpose of preventing injuries, but if such police ei’r in their judgment, or if injuries are occasioned because they are inefficient in the exercise of the powers with which they are invested, the city at largo cannot be held responsible for acts of third persons which, under a more sagacious and efficient police, might possibly have been prevented.

The case at bar has no analogy to the case of injuries done to individuals by the negligent manner in which work to public streets is done, or the want of repair in the same, for the possession of the servitude of the streets is in the city, and on the same principle that a private person is responsible for an injury done by a falling structure upon his property, it is possible that the city in such case may be held liable.

But in the case at bar there is no statute nor principle of law of which we are aware upon which a recovery can be maintained against the city for the error of judgment of the Oity Surveyor.

In regard to the defendant, Mrs. Gi'ailhe, we do not think we can disturb the verdict of the jury.

By Article 2302 of the Civil Code it is provided that “the owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice in its original construction.”

The jury evidently did not consider the opinion of the workman who examined the wall in May and fastened the doors, a sufficient excuse for the accident which happened on the 1st day of July, after the wind and rain which had weakened the support of the remaining portions of the building, besides increasing the weight which rested upon them. See 5 Marcadé, p, 273, Art. 1386, No. 2; 11 Toul. 317.

It is, therefore, ordered, adjudged andi decreed by the court, that the judgment of the lower court as to the said Mrs. Geleste Bestrehan, wife of Alexander Grailhe, and husband, and said Ghmrles Mason, be affirmed; and it is further ordered, adjudged and decreed by the court, that the judgment against the city of New Orleans be avoided and reversed, and that there be judgment in favor of the said city of New Orleans and against the demand of the plaintiff against said city, and that said city recover its cost in the lower court; the said Qrcdlhe and wife paying one half and the plaintiff and appellee the other half of the costs of appeal.


author: Merrick, C. J.

text:
    McCutchon, Howell & Co. v. J. B. Wilkinson—M. U. Payne, Intervenor.
    The privilege awarded by Art. 8184 of the Code to furnishers of necessary supplies to a plantation, does not extend to a crop entirely cultivated and gathered after the supplies were furnished, so as to take effect after the plantation has been sold.
    The privilege under that Article “ on the product of the last crop and the crop at present in the ground,” must be confined to the crop cultivated, standing or being gathered and taken off at the time the supplies were furnished, it cannot be extended to the crop subsequently planted and sold with the plantation to a third party.
    APPEAL from the District Court of Plaquemines, JRoussecm, J.

      G. JDe Ghoiseul, for plaintiffs.

      G. B. Penrose, for intervenor and appellant.
   Merrick, C. J.

The plaintiffs instituted their action to recover $531 93 as plantation supplies.

They were furnished principally between the first day of September, 1854, and January 1st, 1855, when, as it appears by plaintiffs’ account, the items were added up, and they made $506 95, less a credit of $29 02. In January, two other items were added to the account. The first on the 12th, being 42-J gallons of solar oil, $42 75, and the second, January 25th, two kegs of nails, $11 25; total, $54. The suit was commenced on the ninth day of January, 1856, by a sequestration, the plaintiffs claiming a privilege upon the last year’s crop and the crop then in the ground. Under the writ, the Sheriff seized in the sugar-house on the plantation nine hogsheads of sugar.

Moses U. Payne having bought the plantation and slaves at Sheriff’s sale, on the 7th day of July, 1855, intervened in the suit and claimed the sugar as owner, it having been made upon the plantation, as it must be presumed, after his purchase.

The plaintiffs having proved their demand against the defendant, and the Disti'ict Court being of opinion that it operated as a privilege on the crop, maintained it against the intervenor also, and decreed a privilege on the property sequestered.

The intervenor appealed.

Although Article 3184 of the Civil Code awards to the furnishers of necessary supplies to a plantation a privilege upon the product of the last crop and the crop at present in the ground, there is no reason to suppose that the Legislature intended this privilege to extend to a crop entirely cultivated and gathered after the supplies were furnished and to take effect after the plantation had been sold.

There must be a point at which the old crop terminates and the new one commences. It is important to ascertain this period.

The law gives a privilege for the salaries of overseers and for debts due for necessary supplies furnished to any farm or plantation, on the product of the last crop and the crop at present in the ground. C. O. 3184, Acts 1843, p. 44.

In the French text, it is “ sur le produit de la derniére récolte et sur les fruits pondans.” (See also 2376 O. C.) What is meant by the crop in the ground and les fruits pendans? Certainly not the roots of the cane which has not yet been cut, for if that he the case, the overseer who has planted the cane is sure of his privilege on the crops for two or three years to come. Eor we could, with the same propriety, say that his privilege should extend to the second or third year’s crop from the stubble cane, as to say that he has a privilege upon the stubble of the hundred acres of cane cut in November or December of the year of his engagement.

The day before the owner commenced to cut the cane, the overseer’s privilege and the privilege of the furnisher of supplies rested on the last year’s sugar and molasses in the sugar-house, and that unsold in the hands of the merchant, and the standing crop which he had cultivated. When he had cut fifty acres of cane, and as fast as he continued to cut, did the privilege also extend to the cane roots left in the ground by the operation ?

By this arrangement, if the overseer and furnisher of supplies have a privilege only upon two crops for their security, it would shift as fast as the cane should be cut from one crop to the next.

The Legislature, therefore, by the term crop' in the ground, did not mean the uncultivated root of the cane in the ground, the vine or the fruit tree to which nothing had been done. The words were more likely used in their natural sense, and the words crop in the ground mean no more than the “ fruits pendans.” That is, the vine and the root of the cane, when it has been cultivated or has put forth its shoots ; the cotton and corn, when the seed has been committed to the earth. Thus crop is defined by Webster to be “That which is gathered; the corn or fruits of the earth collected; harvest. The word includes every species of fruit gathered for man or beast.” Also, “ corn or other cultivated plants while growing, a popular use of the word.”

Conceding, therefore, that the solar oil and the nails furnished in January, 1855, were necessary supplies, it is shown that the debtor was not through grinding the cane of 1854 until in February, 1855, and that he did not commence planting and cultivating the new crop until the grinding was finished.

There was therefore, properly speaking, no crop in the ground belonging to the debtor at the time the necessaries were furnished, except the crop of 1854, which the debtor was then taking off. Eor there were no plants growing, none had been cultivated and there were no new fruits hanging by their roots. The privilege could not extend to the crop subsequently planted and sold with the plantation to a third party.

Eor the crop of 1855 was not, with reference to the supplies, the present crop contemplated by the Code. Welsh v. Shields, 12 Rob. 527.

It is more reasonable to confine the privilege to the crop cultivated, standing or being gathered, and taken off at the time the supplies were furnished. The tests then are, were the supplies furnished for cultivating or taking off the crop ? Had the planter commenced cultivating the new crop ?

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court, so far as the same affects the rights of said intervenor Moses IT. Payne, be avoided and reversed, and that said sequestration be set aside, and that said nine hogsheads of sugar sequestered be restored the said Moses IT. Payne, who is hereby decreed to be the owner of the same, and that said Pwyne recover the costs of his intervention, the said McGutehon, Howell & Go. paying the costs of the appeal.

Spoeford, J., dissenting. . I think the Article 3184 of the Civil Code, as amended by the Act of March 23d, 1843, (p. 44) gives the furnisher of necessary supplies to a farm or plantation, a privilege upon two consecutive crops, where the account (as in this case) extends over a portion of two years.

The account is conceded to be for “plantation supplies it runs from September 1st, 1854, to January 25th, 1855.

The sugar seized is of the crop of 1855; that crop grew mainly from ratoons which were in the ground on the 25th January, 1855. It is conceded and perfectly settled by authority, that if there was a privilege on the growing crop in favor of the plaintiffs, at the date of the sale from Wilkinson to the intervenor Payne, then the sale did not oust the privilege. The sole question, therefore, is, was there, in July, 1855, a privilege on Wilkinson's then growing crop for the account sued upon ?

I think it was the intention of the law-giver that the plaintiffs, as furnishers of plantation supplies to Wilkinson, for the latter part of 1854 and the early part of 1855, should have a privilege for the whole account, both upon the crop of 1854 and the crop of 1855, and that the judgment should be affirmed.

Voorhies, J., concurring.


author: Yoorhies, J.

text:
    Christoval Morel v. City of New Orleans.
    An attorney-at-law is entitled to claim commissions uponjudgments obtained through his agency as well as upon moneys actually collected on executions and accounted for to his clients, although he be superseded by the appointment of another attorney.
    APPEAL from the Sixth District Court of Now Orleans, Gotton, J.

      ff. Legmieur, for plaintiff.

      J. J. Michel, for defendant and appellant.
   Yoorhies, J.

The plaintiff claims the sum of §3666 84, for professional services alleged to have been rendered by him as attorney to the late First Municipality, in bringing upwards of 1800 suits on bills placed in his hands for collection, as shown by exhibits annexed to and made part of his petition, which exhibits occupy nearly 60 pages of the record.

Under an ordinance of the First Municipality, the right to institute suits for the recovery of its claims for taxes, fines, &c., was conferred exclusively on the attorney or assistant attorney employed by it, whose compensation for such services was fixed at five per cent, by the ordinance of the 6th of January, 1845. It was made the duty of the attorney thus appointed, on the institution of such suits, to submit to the treasury department a statement showing the title, amount and object of each of said suits, and, when finally determined, a statement of the judgment in each of them. The claim of the plaintiff arising from such a multiplicity of suits, was referred by the court below to an auditor, who thereupon reported that the plaintiff had instituted suits for the recovery of claims amounting to §102,398 09, of which §36,228 49 had ripened into judgments ; that §14,825 96 had been paid into court on account thereof, as appeared from the records ; and that taking into consideration the receipts on file, the testimony of the various collectors, showing that the plaintiff had regularly settled with them, and the fact that a portion of the claims put in suit by the plaintiff had been collected by his successors, he concluded that said plaintiff was entitled to claim commission on the whole amount of said claims in suit, less $246 11 as his commission on claims which he had himself collected and accounted for. The defendant having opposed this report on certain grounds, not necessary to be mentioned, the court ordered another to be made, restricting the plaintiff’s commission to all such claims as had ripened into judgments previous to his removal, and also on all those which he had collected on executions and accounted for to the defendant, and to confine said commission to the claims set forth in the exhibits annexed to his petition. The auditor accordingly reported, awarding to the plaintiff the sum of $1565 37, which formed the basis of the judgment of the court below, from which the present appeal is taken by the defendant.

It is not pretended that the services were riot rendered as alleged by the plaintiff. The evidence shows that the sum of $14,825 96, resulting from judgments obtained through the agency of the plaintiff, has already been paid into court. It is neither alleged nor shown that the other judgment debtors are insolvent. The plaintiff having been superseded by the appointment of another attorney, we think it comes with exceedingly bad grace on the part of the defendant to object, that he is not entitled to claim any commission on the judgments thus obtained by him, as he has not collected the same.

Judgment affirmed.


author: Spoeford, J.

text:
    G. Currie Duncan, President, &c. for the use and benefit of George Wingfield & Co. v. Sun Mutual Insurance Company.
    Ef, upon a general survey of the provisions of the policy and the circumstances under which it was procured, it appears that the intention of the company was to insure for the benefit of any person in interest, although not named, the common interest of the parties shall not be defeated for the want of technical or even customary phrases. If, on the other hand, the most natural construction of the policy is, that the party named as the assured only sought to protect his own interest, the contract is not to be extended so as to cover the interest of a third person.
    APPEAL from the Sixth District Court of New Orleans, Cotton, J.

      Hammer & Hays and Loga/n Hunter, for plaintiff.

      J. A. Maybin, for defendants and appellants.
   Spoeford, J.

This suit is upon a fire policy to recover a loss upon certain packages of wine.

It is brought by George Cmrie Duncan, in his quality of President of the New Orleans and Carrollton Railroad .Company and the Jefferson and Lake Pontchartrain Railroad Company, for the use and benefit of George Wingfield & Co., against the Sun Mutual Insurance Company.

It is alleged that the wine belonged to Wingfield & Co., by whom it was deposited in the railroad company’s depot at Tivoli Circle, in New Orleans, thence transported for hire in the plaintiff’s cars to their depót or wharves on the Lake shore, and there burnt and lost.

The defendants contend that they insured nobody against loss hut the railroad company; that there is no privity of contract between them and Wing-field & Co., for which reason that firm has no right of action; and that the railroad company has no right of action, because it has lost nothing.

By the terms of the policy, the defendants covenanted to “insure George Ourrie Duncan, President of the New Orleans and Carrollton Railroad Company, and for the Jefferson and Lake Pontehartrain Railroad Company against loss ancl damage by fire on merchandize, being such as may be placed in the depóts hereinafter named, for conveyance to and from the city to Lake Pontchartrain, to wit: on merchandize contained in the depót at Tivoli Circle, to the amount of $3000; on merchandize contained in the depót at the Lake end of the Jefferson and Lake Pontehartrain Railroad, to the amount of $5000. The risk in the cars is also to be covered by this insurance to the extent of the amount of this policy, to wit: $8000, for one year; and the said company do hereby promise and agree to make good unto the said insured, their executors, administrators and assigns, all such loss or damage, not exceeding in amount the sum hereby insured, as shall happen by fire to the property, as above specified, during one year, Sec., the said loss or damage to be estimated according to the true and actual value of the said property at the time it shall happen, &c., &c.”

The usual condition is annexed to the policy, that “ goods held in trust or on commission are to be declared or insured^as such, otherwise this policy will not cover such property.”

No such words as “ for whom it may concern,” or “ in trust for,” are employed in the policy. It is true that thei^e is nothing sacramental or indispensable in these ordinary phrases. If upon a general survey of the provisions of the policy and the circumstances under which it was procured, it appears that the intention of the company was to insure for the benefit of any person in interest, although not named, the common interest of the parties shall not be defeated for the want of technical or even customary phrases. If, on the other hand, the most natural construction of the policy is, that the party named as assured only sought to protect his own interest, the contract is not to be extended so as to cover the interest of a third person. Thus, it is held that a commission merchant who is insured against loss by fire upon “goods, as well the property of the insured as held by him on commission,” in a certain store, may recover in his own name the value not only of his own goods destroyed by fire but of those of his constituents in the same store. DeForest v. Fulton Fire Insurance Company, 1 Hall, 100.

But the general rule is thus stated by Mr. Phillips : “ Insurance made by a person in his own name only, without any indication in the policy that any other is interested, can be applied only to his own proper interest in the- subject, or his interest as trustee.” 1 Phillips, Ins., § 380. 1

In the present case the defendants only insured the railroad company against loss or damage by fire upon merchandize in certain of its depóts, or. on the-transit between them. It is true the pplicy does not imply that the merchandize must necessarily belong to the company. But no matter to whom it might belong, there is nothing in the policy or in the evidence to indicate that the defendants intended to do anything more than indemnify the railroad company against the loss or damage the company might sustain from the destruction or deterioration of such merchandize by fire. There is nothing in the circumstance of a railroad company taking out such a policy to lead the-underwriters to suppose that the company sought anything beyond its own protection. There is no allegation or proof of a usage of railroad companies to insure for the benefit of their customers, nor of a .contract with Wingfield & Co., or instructions from them to insure, nor of a payment of this loss by the plaintiff to Wingfield & Go., nor even of a liability to pay it, or an undertaking on its part to warrant against all losses by fire.

On the other hand, that the company might have an insurable interest in goods intrusted to it by bailors for transportation is clear. The doctrine upon this subject is well stated by Mi-. Angelí in his treatise on Eire and Life Insurance, §77: “An inland carrier will, in general, have an insurable interest and a right to provide an indemnity against such accidents to the property placed in his hands, as will render him liable under his eontn'aet. Thus, it it was held that common carriers along the line of a canal had an insurable interest to the full value of all the goods placed in their hands which they might protect under the general words of insurance ordinarily employed.” But in the following section of the same treatise it is shown that the practice is to allege that the goods intrusted to him as a common carrier were consumed by fire, and that the assured thereby became liable to pay to the respective owners a sum equal to that named in the policy.

It was remarked by Mi-. C. J. Jones in the case of DeForest v. Fulton Fire Insurance Company, already cited from Hall’s Reports, that “a carrier may insure the goods he contracts to carry ; yet he has neither the legal title nor the beneficial interest in them; but he is responsible for their loss. His insurance is upon the goods ; yet his indemnity is against the consequences of his implied guaranty for their safe carriage, and not against the loss or deterioration of the property by the perils insured against.”

As the interest of Wingfield & Go. in the wine was not covered by the policy in this case, even by implication, it follows that the railroad company is the real plaintiff. This was also asserted by counsel representing that side, on the oral argument. And as the company did not own the wine, it should show some loss or liability of its own on account of fire to authorize a recovery; for the insurance only promised to indemnify the company for its own loss or damage by fire.

The testimony is that a burning steamboat came suddenly against the wharf where the goods were deposited and set them on fire, and that it was impossible to save them. So far as the evidence goes in this case this would seem to have been an accidental calamity beyond the control of the company or its servants. And the Article 2725 of our Civil Code declares that “ carriers and watermen may be liable for the loss or damage of the things intrusted to their care, unless they can prove that such loss or damage has been occasioned by accidental or uncontrollable events.”

As there is neither allegation nor proof that the railroad company, which alone was insured, has sustained any loss or incurred any liability to Wingfield & Go. or any other person, by reason of the destruction of the wine which belonged to Wingfield & Go. there should be a judgment of non-suit.

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed, and that there be judgment against the plaintiff as in ' case of non-suit, he paying costs in both courts.


author: Merricic, O. J. Cole, J., Spofford, J.,

text:
    Joseph Bernard v. W. S. Scott—T. J. Scott, Intervenor.
    Where a deed was executed in the State of Mississippi in the form adopted in a common law State to create a mortgage there, and real estate situated in Louisiana was embraced in the deed, Held: , That the instrument must be considered as having but a single aspect, and it was not reasonable to suppose that the parties contemplated a mortgage as to the property situated in Mississippi, and a sale as to the property in-Louisiana.
    From the fact that the%arties to the deed were both residents in States where the common law prevails, and that the instrument was executed in a common law State in the form of a mortgage, part of the property to be affected by the instrument being situated in that State, it must be considered that it was the intention of the parties to create a mortgage to secure the payment of a sum of money.
    When the purchaser of property was fully informed of the title of his vendor, and that he claimed under a deed executed in another State and embracing property situated there as well as in this State, he was bound to enquire what effect the law would give to such a deed.
    APPEAL from the District Court of East Baton Rouge, Eobeodson, J.

      J. W. Seymour, for plaintiff.

      F. R. Brunot and CJlarlce & Bayne, for defendants and appellants.
   Merricic, O. J.

This is an action of partition. The plaintiff claims title to one-fourth of a tract of land situated in the parish of East Baton Rouge, by mesne conveyance from Thomas J. Sedtt, who was the owner of one-fourth in common with his three brothers, William S Seott, John Scott and Samuel Seott. Thomas J. Scott has intervened in the suit, denying plaintiff’s title and praying that his demand be rejected. Thd defendants answer by a general denial. The court having maintained the plaintiff’s title, they have appealed.

The only question raised in the case is one of construction of a deed from Thomas J. Scott to one Ruderstein. The plaintiff contends that it is a sale under a condition which has become absolute — the defendant that it is a mortgage.

The instrument itself is executed by Seott alone, and acknowledged before a Justice of the Peace of Warren county and State of Mississippi. It purports to be executed on the 22d day of May, 1841, between Thomas J. Scott, of the city of Vicksburg, Mississippi, on the one part, and John G. Ruderstein, of the city of Cincinnati, of the State of Ohio, of the other part.

The consideration specified is the nominal sum of $6000. The property conveyed consisted of certain property in and adjoining Vicksburg, and property in Louisiana. The instrument commencing at the habendum, is as follows: “To have and to hold the aforesaid tract and lots of land unto him, the said John G. Ruderstein and his heirs, executors and assigns forever, and the said Thomas J. Scott warrants and defends the title of the aforesaid lots or parcels of land with all appurtenances, against the claims of all persons whatsoever. But with this reserve, that the said John G. Ruderstein holds two bills of exchange, one for $3162 79, drawn by said Ruderstein in favor of J. G. Bull, dated March 12th, 1840, and payable 90 days after date, the other for $3000, same date and payable 60 days after date, drawn 'by same in favor of same, both of which bills are indorsed by said Bull, and accepted by said Thomas J. Scott. Now, if the said Thomas J. Scott shall well and truly pay or cause to be pajd to the said Ruderstein the aipount of said two bills of exchange, then the above conveyance to be null and void, otherwise to remain in full force and virtue.”

This instrument must be considered as having’ but a single aspect. It was intended either as a conditional sale or as a common law mortgage to secure the payment of Thomas J. Scott’s acceptances. For it is not reasonable to suppose that the parties contemplated a mortgage as to the property situated in Mississippi, and a sale as to the property in Louisiana; that the debt should be wholly or partially paid by the foreclosure of the mortgage and the sale of the property in Mississippi, and that there should also be a forfeiture of the property in Louisiana by the non-payment of the whole pri^e. As the parties to the instrument were both resident in States whore the common law prevails, as the instrument was executed in a common law State and in the form adopted to create a mortgage there, and as a part of the property subject to the action of the instrument was situated in the State of Mississippi, there can be no question that the original parties to the act, the grantor and grantee, intended to create a mortgago to secure the payment of a sum of money. 2 Blaclcstone Com., 158, 159 ; Burrill’s Law Die. Equity of Redemption ; 4 Kent Com., 159. As between themselves, therefore, there is no doubt what effect ought to be given to the instrument.

But was Ruder stein’s vendee, Shalor, a resident of Louisiana, bound to know the law of Mississippi and what construction ought to be put upon the instrument as between the parties ? The power of attorney under which Ooolc acted for Ruderstein expressly refers to his title from Thomas J. Scott, and empowers the attorney in fact to sell all his right, title and interest in and to the property in controversy, “ the same conveyed to him by Thomas J. Scott, by deed dated Vicksburg, on ---of-1841, the particular description of which will appear by reference to said deed, on record in the office of the Parish Judge of said parish,” East Baton Rouge.

The purchaser was, therefore, fully informed of the title under which Ruder-stein held, and as it covered property both in the States of Mississippi and Louisiana, he was bound to inquire what effect the law would give to the same. Similar instruments have been held to be mortgages of property situated in a common law State and afterwards removed here. See Smoot v. Russell, 1 N. S. 522. In the case of Hayden v. Nutt, 4 An. 71, the court recognized an instrument similar in form, executed in the State of Mississippi, and operating on. the undivided interest of tho grantor in a tract of land situated in Louisiana as a mortgage. We think the instrument relied on as the basis of the plaintiff’s title can have no greater effect.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that there be judgment against the demand of the plaintiff and in favor of the defendants, and that the plaintiff pay the costs of both courts.

Cole, J.,

concurring. The question in this case is whether this act is a sale or mortgage, and in order to determine this another question must be solved, and that is, whether its character is to be determined by the laws of Louisiana or Mississippi.

Art. 10 O. C. enunciates the principle, that “the effect of Acts passed in one country to have effect in another country is regulated by the laws of the country where they are to have effect.”

This Article does not speak of the interpretation of Acts as to their chm'acter, form and nature, but as to their effect.

Its phraseology shows that the meaning of this Article is, that the Act passed in the foreign country is taken as a perfect manifestation of the will of the contracting parties, which must be executed in accordance with the laws of 'Louisiana; that is, if there is anything in the Act repugnant to our laws it will be void, but so far as it is in harmony with them it will be carried into effect. The preceding part of Article 10 ordains, that the form and effects of Acts are to be determined by the laws of the country where they are passed; then follows the part of the Article now under consideration: “the effect of Acts passed in one country to have effect in another country is regulated by the laws of the country where they are to have effect.”

The word “Eorm” is omitted in this part of the Article, and the law-giver speaks of an “Act passed,” that is, of a contract good between the parties, and perfect according to the laws of the country where it is made.”

The law-giver means that taking this Act, which is good between the parties in a foreign State and framed according to those laws, so as to give effect to such an Act in that State, yet the power of executing it in Louisiana will depend on the conformity of its intended effect with the provisions of our law ; the concluding part of Article 10 justifies our interpretation, for'it says : that the exception, that the effect of Acts passed in a foreign country is ".regulated by the laws of the country where they are to have effect, does not hold when a citizen of another State of the Union or a citizen or subject of a foreign state or country disposes by will or testament, or by any other act, causa mortis, made out of this State, of his movable property situated in this State, if at the time of making said will or testament, or any other other act cmisa mortis, and at the time of his death he resides and is domiciliated out of this State.

The latter part of this Article shows that the word “ effect” has no reference to the form or character of the Act, but only to the result and consequence of the Act.

Article 483 O. O. confirms this interpretation of Article 10: “Absolute ownership gives the right to enjoy and to dispose of one’s property in the most unlimited manner, provided it is not used in a way prohibited by la/ws or ordinances : persons who reside out of the State cannot dispose of the property they possess here in a manner different from that prescribed by its laws.

The signification of the words “in amanner different” &e.is, that the foreign Act cannot transfer property in Louisiana to other persons than to those who are entitled to it by the laws of this State.

The principle of comity and convenience requires that a contract made according-to the laws of a foreign state should be carried into effect, if it does not clash with the positive legislation of our State, and it would be unjust to interpret contracts different from the intention of the contracting parties ; and this would be the case if what would be a mortgage by the laws of the State where it is passed should be by the laws of our State an obligation, to take effect immediately, but with a resolutory condition, (2016 C. C.) and on that account bo considered by our courts a present sale with a resolutory condition.

The w'ay to arrive then at a just conclusion in this case is to inquire whether the act from Scott to Buderstein is a mortgage or sale by the laws of Mississippi where it was passed.

By the common law which prevails it that State this act is a mortgage, and as there is no sacramental form of mortgage in Louisiana, and this act does not violate any of the provisions of our laws, effect ought then to he given to the intention of the parties and it ought to be considered a mortgage, although, by the provisions of our Code, it might be viewed as a sale with a resolutory condition.

No injustice is done to any party, because the act of Seott to Duderstein was on record in the parish where the land was located, and parties had it in their power.to examine the effect of this act.

Por these and the reasons adduced by Chief Justice Merrick I concur in his opinion.

Spofford, J.,

dissenting. “ The effect of Acts passed in one country to have effect in another country, is regulated by the laws of the country where they are to have effect.” C. O. 10.

No independent State permits its land titles to be governed by a. foreign system of laws. Lands can only be transmitted, conveyed and hypothecated according to the lex loei rei sitae. Any Act or instrument purporting to affect in any way lands situated in this State is to be interpreted by our law exclusively, even though the Act was passed in a foreign State it cannot be construed by the foreign law.

I believe this to be the just and sound rule, and that it has been generally adopted in civilized States as being essential to maintain the sovereignty of each within its own territorial limits and the purity of land titles. If a deed touching lands in Louisiana were made in China, that deed must be construed by the law of Louisiana alone, and the law of China would be nothing to the purpose. It is the same with a deed made in Mississippi concerning lands here. In this matter, Louisiana and Mississippi are independent sovereignties, foreign to each other.

To one who had never read the system of law which prevails in Mississippi but who was vei'sed in the law of Louisiana, the instrument in question would present no difficulty. It is an obligation to take effect immediately, but coupled with an express resolutory condition; O. C. 2016. It is a present sale of the land, defeasible, however, by the vendor when he shall fulfil a certain duty. Until that condition is fulfilled the vendee is clothed with the title — he is master of the thing; as such he can maintain a petitory action, or an action of partition. The deed was recorded in. the proper office.

It is only by looking at it through the law of Mississippi that this instrument assumes another hue; but that medium can serve only to distort and mislead, for our lands are not to pass according to the forms and theories of Mississippi law.

So far as my researches have gone this is the first case in which the legal character of a conveyance of Louisiana lands has been fixed by a foreign law.

Hayden v. Nutt, 4 An. 71, was decided by the rules of our Code, on the ground that the contract “ was in its terms an accessory contract intended for the assurance of the payment of a principal contract.” The court said the instrument fell within the definition .of a conventional mortgage given in our Code, because on its face and before purporting to convey anything, the Act proclaimed that it was made for the “ consideration of seeit/ring to David Dawson the payment of four notes, &c.”

Smoot v. Russell, 1 N. S. 523, related to slaves who were in Alabama at the time the contract relative to them was made there. It has no bearing upon the present case. The court expressly declined deciding whether the contract was a sale or a mortgage, although it quoted an expression in the beginning of the Act, declaring that it was made “ for the better security of the plaintiffs, and to indemnify them against all loss, or against the payment” of a certain note, &c.

Here the deed was executed and the land has passed into the hands, of a third person upon the faith of the recorded deed, this deed is, upon its face, translative of property, and not a mere security; it has a dissolving condition reserved to the vendor'; he is an intervenor in this cause, and does not pretend, even in his pleadings, that the condition Jhas happened, that he has done what he reserved to himself the liberty to do in order to defeat his most formal conveyance. There is no equity in his favor, and I think the law sustains the judgment appealed from.

Mr. Justice Voorhies concurs in this opinion.


author: Spoeeord, J.

text:
    C. A. Barrière & Brother v. D. McBean.
    The accidental omission in the petition of the name of one of the plaintiffs, where they are a firm, will not vitiate an attachment where the affidavit was made by one of the firm on behalf of the= firm, and the bond was given by the firm as principals.
    In such a case no new bond and affidavit are required.
    The property of a partnership having a domicil out of the State can be attached here in a suit against, one of the partners.
    APPEAL from the Sixth District Court of New.Orleans, Cotton, J.

      H. A. Morse and Chilton & Harrison, for plaintiffs.

      Smiley & Perrin and M. M. Cohen, for defendant and appellant.
   Spoeeord, J.

This suit was commenced by attachment. A quantity of lumber was seized, and also rights and credits in the hands of Stocker, who was. made a garnishee.

Stocker, as agent of McBean, bonded the lumber immediately. The condition of the bond was that, whereas the attachment had been released upon the appearance of the defendant in the suit, the said defendant should satisfy whatever judgment might be rendered against him in the cause.

Erom a final judgment rendered against him in conformity to the prayer ©f the petition this defendant has appealed.

There was a judgment against the garnishee for a part of the sum claimed. He has taken no appeal.

There are no interveners in the cause.

The appellant urges that in the original petition Frmgois Q. Barrihre, one of the firm of C. A. Barriire & Brother, did not appear, and that, therefore, the attachment was a nullity which could not be cured by the subsequent appearance and joinder of F. C. Barriére in a supplemental petition. The case of Purdee v. Coche, 18 L. 660, is cited in support of this view.

The case is not in point. Here the affidavit was made by one of the firm on behalf of the firm, and the bond was given-by the firm as principals. The defendant’s rights were thereby fully protected. No new bond and affidavit were given or required. The accidental omission of the name of one of the firm in the petition might well have been supplied by an amendment, it appearing that the suit was brought in the interest of the firm.

On the oral argument it was suggested that the cause was not at issue when it was fixed for trial. There is nothing of record to show this; moreover, if there was, the defendant should have objected to going to trial at the time the cause was called for trial.

The appellant mainly relies for the reversal of the judgment upon an allegation that he was only interested as a partner in the property seized, and that the property of a Mississippi partnership cannot be attached in this State in a suit against one of the partners.

The contrary doctrine seems to have been held in Fraser & Co. v. Thorpe, 9 An. 518. See also Story on Partnership, §261 et seq.

Something belonging to the defendant was seized.' He admits that as a partner he had a right of property in the lumber. He was, therefore, brought into court. He bonded the property in his own name. He thereby contracted the obligation of defending the suit and responding to a personal judgment against him. Kendall v. Brown, 7 An. 668. The plaintiff’s claim was fully proved.

We see no error in the judgment to. the prejudice of the appellant.

Judgment affirmed.


author: Vooriiies, J. Buchanan, J.,

text:
    Paulin Martin, Syndic, v. Abraham Drumm.
    In cases where a sale or transfer of property is attacked, upon the grounds of alleged fraud and simulation, the defendant is not bound to produce proof of his good faith and the reality of the sale, when the property did not remain in the possession of his vendor. The onus of proving it is on the part of plaintiff, who alleges the fraud.
    The presumption established by the Act of 1817, reenacted in 1855, (Revised Statutes, p. 257, § 28,) applies to cases alone in which proceedings are instituted against the insolvent to deprive him of the benefit of the insolvent laws, on the ground of his having given an unjust preference to one ‘ or more of his creditors over others.
    APPEAL from the District Court of St. Tammany, Merriclc, J.

      J. L. Tissot, for plaintiff and appellant.
   Vooriiies, J.

This is an action instituted by the syndic of the creditors of Theobald Koenig to avoid and set aside a sale of certain lots and improvements in the town of Covington from the insolvent to the defendant, made within three months of the surrender, on the ground of fraud and simulation.

The only question presented in the case is whether the onus was on the plaintiff to prove the alleged fraud or simulation, or on the defendant that the sale was real and bona fide.

William B. Homer, the only witness in the case, testifies that the vendor and vendee had been living together on the property conveyed in 1854, that is, Mr. Drumm constantly and Mr. Koenig often during the course of the year, sometimes alone and sometimes with his wife. No change in the possession, it appeared to him, had taken place since the transfer in 1854. Moreover, it appears from the recital in the deed of sale, executed on the 13th of January, 1854, and an extract from the proceedings in the case of Theobald Koenig v. His Creditors, that the insolvent was a resident of the city of New Orleans.

The deed of sale shows that the price stipulated was the sum of $500, payable, in the defendant’s note to the order of the insolvent, two years after date, with eight per cent, per annum interest thereon from said date until paid. The note thus given does not appear to have been included among the property and effects surrendered by the insolvent to his creditors. Neither is it alleged or shown that the price thus stipulated was inadequate to the value of the property conveyed.

On the trial below, on the 5th of June, 1855, the note thus given was, according to its term of payment, evidently still outstanding and negotiable. The fact of its non-payment could not, therefore, have the least effect upon the defendant’s right. If it was the property of the insolvent at the time of his surrender, and was fraudulently concealed from his creditors, it was for the latter to resort to the remedy given to them under the statute, or the syndic to take legal steps for its recovery. Revised Statutes, p: 255, § 22 et seq. Duplessis v. Boutté, 11 L. R. 345.

It appears to us clear, from the evidence, that the defendant was not bound to produce proof of his good faith and the reality of the sale, as the property did not remain in the possession of his vendor, hence the Articles 2456 and 1915 of the Civil Code, relied upon by the appellants, must be considered inapplicable. Neither can the presumption of fraud, established under Articles 3323 and 1979 of the Civil Code, be considered applicable, inasmuch as it is neither alleged nor shown that the defendant was a creditor of the insolvent. The presumption established by the 4-ct of 1817, reenacted in 1855, (Revised Statutes, p. 257, § 28,) applies evidently only to cases in which proceedings are instituted against the insolvent, to deprive him of the benefit of the insolvent laws, on the ground of his having given an unjust preference to one or more of his creditors over the others. As we have seen, the defendant does not fall within this category.

Judgment affirmed.

Buchanan, J.,

dissenting. In January, 1854, Theobald Koenig sold to his father-in-law, the defendant, a house in Covington, parish of St. Tammany, for the ostensible price of five hundred dollars, in a note of the vendee to the order of the vendor, payable two years'after date.

In March, 1854, two months after this sale, Koenig sued his creditors, in the Third District Court of New Orleans, for a respite, which being refused him, his proceedings were converted into a surrender, and the plaintiff was appointed syndic. He brought this action in August, 1854, within one year after the sale, to annul the same, as made in fraud of Koenig's creditors.

This action is based upon the Articles 1965, 1984 and 1989 of the Civil Code, and upon the 10th section of the Act of 1840, (Bullard So Curry, 474,) reenacted in 1855, page 435, section 21.

By those statutes there is a presumption of fraud, which throws the burden of proof on the defendaut to establish the validity and good faith of the sale. He has offered no proof whatever on the subject. The suit was tried in June, 1855, when the note, pretended to have been given for the price by defendant to the insolvent Koenig, had but a few months to run. The existence of the note at that time should at least have been established. If it was in existence, and in the hands of a third holder for value, it is more than probable that it would have made its appearance. If it was still in the hands of Koenig, it belonged to his creditors, represented by plaintiff.

The circumstance of Koenig not having put the note on his bilan, corroborates the lega?, presumption of fraud and simulation in this contract.

Again, Koenig has remained in possession since the sale. He was seen superintending the shingling of the roof a few days before the trial. This also «reates a legal presumption of fraud, which throws the burden of proof upon (the defendant. O. O. 1915, 2456.

The case of Duplessis v. Boutté, 11 L. R., has no application adverse to plaintiff in this suit. That was an intervention of a syndic in an action of partition, claiming that the interest of defendant in the property to be divided had passed to his creditors. The syndic prevailed although many years had ■elapsed.

This suit is also a revendication of property which belonged to creditors, and should have been surrendered. It is not at all a proceeding under the sections of the Act of 18X7, reenacted in 1855, which have been cited, and the proceeding by opposition to the discharge of an insolvent debtor under those statutes ■does not exclude the direct revocatory action given by the Code and the statute of 1840, also reenacted in 1855.

I therefore think the judgment should be reversed.

•Spoeford, J., concurs in this opinion.


author: Merrick, O. d.

text:
    H. N. Seibrecht, Syndic, v. City of New Orleans.
    Corporations possess onlyjura minorwni. 'They have not the power of contracting on all subjects, like persons of full age and sui juris. Having only such powers as are conferred by their acts of incorporation, they cannot be bound by contracts made by those not authorized to represent
    A corporation cannot be bound for any contract made without its authorization expressed by a resolution of the Common Council.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.
    . T. A. McDonald, for plaintiff.

      J. J. Miehel, for defendant and appellant.
   Merrick, O. d.

It is not pretended, that any person having authority on behalf of the city contracted with Robinson & Olroyd for the carpeting used In the Third, Fourth and Sixth District Courts.

The person who bought it says that he was was not authorized by the Common Council or a»y committee of the Council, but that he purchased at the request of some,of the Clerks or Judges of the court.

Now is the city bound to pay for the articles because they were deemed necessary by a Clerk or a Judge, and were constantly used in the court rooms, and because the city usually supplies the courts with such furniture ?

Corporations possess only jwra minorum. They have not the power of contracting on all subjects like persons of full age and sui juris.

RespubUca minormn jwre solet, ideoque omxilium resUtutionis implorase ■potest. Code, Const. 4, tit. 54, liber 2; ibid, Const, 3, liber 11, tit. 29; ibid, 'Const. 4, liber 11, tit. 31; see also 3 An. 308.

Having only such powers as are conferred by their Acts of incorporation, they cannot be bound for contracts made by those not authorized to represent them. O. C. 430.

But it is said that a corporation may be bound on a quasi contract arising ex equo et bono. So may a minor. But then it must be for necessaries which the tutor would not provide, or things which have augmented the minor’s estate, and not those things which have been consumed by use or lost in speculations. C. O. 1778; Babcock v. Penniman, 5 N. S. 651.

Now although no money can be drawn from the city treasury except upon a special appropriation by the Common Council, no application was made to them to make the purchases, nor was any of its proper officers consulted on the subject. The city then is not in the condition of the minor whose tutor refuses to supply him with necessaries.

But it is said that the materials were used in the court l’ooms, and that the city has neglected to return the same.

To pursue the analogy further, the minor who resists the contract is not bound to restore the goods which he has worn out or squandered. He is bound to restore only when he avails himself of the restitutio in integrum and is himself the plaintiff.

But in what manner has the city refused to return the goods ? Who is the city ? Is it a being having knowledge of all that transpires in its markets, its streets, its school houses, its court houses and public buildings ? If a person chooses to place furniture in any of these buildings, which is used by the occupants, is the city bound for it ?

On the contrary, it seems to us that the doctrine announced will, if carried out, lead to bankruptcy. The Mayor and Aldermen are not presumed to know (even if they visit all the public buildings) the sources whence everything they see has been obtained.

The only safe rule is to hold that the city cannot be hound for any contract made without its authorization for furniture furnished any of the public buildings, and that if any person shall furnish the same, without being authorized thereto by a resolution of the Common Council, that he does so knowing that the city is not hound to pay him for the same, and that his only remedy is to take away his furniture when they refuse to pay for it.

The case before us is probably a hard case, because the plaintiff suffered his carpets to be worn out before he presented his bills. But as he knew that the city had not passed any resolution authorizing the purchase, so it was his own folly to sell his goods upon the uncertainty of the city’s ratifying the bargain.

A large city like this cannot be controlled in its appropriations for its improvements and the refurnishing of its public buildings by the acts of unauthorized persons. The power to judge of the necessity of a change is vested in the Common Council, and the city courts must at least first communicate their wants to such Council before undertaking to order those things they deem necessary.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be ayoided and reversed, and that there be judgment against the demand of the plaintiff and in favor of the defendant, the plaintiff paying the costs of both courts.


author: Buchanan, J.

text:
    Succession of Henry Fletcher.
    The Auditor of Public Accounts has no authority, under the Act of the Legislature of 18th March, 1855, (sec. 9,) to appoint counsel to appear for the State in civil suits in the District Courts in New Orleans, or to appear for the State in the Supreme Court in New Orleans.
    In the city of New Orleans the State is represented by the Attorney General, its highest law officer, who is required by law to keep his office there.
    It was the intention of the Legislature, in the above recited Act, to provide for the collection of money due the State in parishes or in courts where the State should be unprovided with an official representative.
    APPEAL from the Second District Court of Neiv Orleans, Morgan, J.

      M. G. Miller, for the State, appellant.

      J. Oulbertson and A. Eennen, for the testamentary executor.
   Buchanan, J.

Heiwy O. Miller, Esg., an attorney-at-law, has taken this appeal in the naiñe of the State of Louisiana, by virtue of an appointment by the Auditor of Public Accounts to that effect.

The appellee moves to dismiss the appeal, on the ground that the Auditor of Public Accounts was without authority to employ counsel to represent the State in the premises, and that the Attorney General is the only proper officer to take the appeal.

The appellee relies upon the Act to regulate the office of Attorney General, approved February 20th, 1855, the first section of which declares that it shall be the duty of the Attorney General to appear for the State and prosecute and conduct, in the District Courts in the city of New Orleans, all civil suits in which the State may be a party or be interested, and to appear for the State in the Supreme Court sitting in New Orleans, and prosecute and defend all appeals, in cases criminal or civil, in which the State may be a party or interested, and to intervene, whenever the intei’est of the State shall require such intervention, in all suits now pending, or which may hereafter be instituted, in the courts of the First Judicial District, and in the federal courts, &c., when the amount or value of the property at issue in such intervention shall exceed two thousand dollars.

The appellant relies upon the Act to regulate the office of Auditor of Public Accounts, approved 13th March, 1855, which declares, (section 9,) “that the Auditor of Public Accounts is authorized to employ attorneys to recover money due the State from any cause whatever, whenever in his discretion he may deem it proper and expedient to do so.”

It has been eoriectly argued by the appellant that the latter of these two statutes must control the former wherever they differ, inasmuch as it was passed and promulgated after the former. But it is only where there is an obvious and necessary inconsistency of the provisions of the two statutes, that the Act relating to the office of Attorney General must be considered as repealed.

Tested by this rule, we do not find that the Auditor of Public Accounts has authority to appoint counsel to appear for the State in civil suits in the District Courts in the city of New Orleans, or to appear for the State in the Supreme Court sitting in New Orleans, or to intervene, on behalf of the State, in suits in the courts of the First Judicial District, in which the amount or value at issue exceeds two thousand dollars. Eor in all these classes of cases the Act of February 20th makes it the duty of the Attorney General to represent the State. The power of the Auditor of Public Accounts to employ attorneys “to recover money due the State from any cause whatever” is, therefore, exclusive of the Supreme and District Courts sitting in the city of New Orleans. In that city the State is represented by its highest law officer, who is required to keep his office there. There is no reason for supposing that the Legislature intended to confer upon the Auditor of Public Accounts the extraordinary power of superceding, whenever he should think proper, the Attorney General elected by the people, by appointing an Attorney General pro Me vice, in any or every civil suit for the recovery of money from the debtors of the State, in the courts in the First Judicial District, and in the Supreme Court sitting in New Orleans.

It is more reasonable, and perfectly in harmony with the language of the statute relie'd on by the appellant, to suppose the intention of the Legislature to have been to provide for the collection of moneys due the State in parishes or in courts where the State should be unprovided with an official representative.

Again, the present proceeding is not an action to recover money due to the State. It is an intervention in’the name of the State in an opposition to an account of administration filed- by a. testamentary executor. The State had already been decreed, by judgment of this court, to be the heir of Fletchm•, in a proceeding to which the.Attorney General was a party. See 11 An. 59. By that judgment it was ordered that, instead of the gross amount of assets in the executor’s hands, being turned over to the Attorney General, (as had been ordered by the District Court,) the administration of the testamentary executor should be carried on to- final settlement and liquidation of the estate, by reducing the assets to cash and paying the debts, and that the balance remaining upon such final liquidation shall be paid over, not to the Auditor of Public Accounts, but to the State Treasurer, in conformity to Article 1184 of the Civil Code.

The cause being thus referred back to the Second District Court of New Orleans, the executor sold the property of the estate, and rendered his account, showing a balance, after the payment of all debts and charges, of $6806 10, stated to be the “balance coming to the State of Louisiana.” This account was opposed by the appellee, claiming to be a creditor of Fletcher's succession. The appellant, Miller, acting under the appointment of the Auditor, intervened and pleaded prescription and other pleas against the demand of the opponent. It is evident that his position in this cause is that of defendant, instead of actor. In no sense can the appointment by the Auditor be viewed as regular or legal.

Appeal dismissed.