author: Watkins, J.

text:
    No. 13,052.
    Edward Vives, Jr., vs. Arthur V. Robertson.
    Syllabus.
    while It has been repeatedly held to be sufficient allegation, when supported by plaintiff’s oath, to authorise the granting of the order and the issuance of a writ of sequestration, that the affiant fears that the defendant will conceal, part with or dispose of the property on which he asserts a privilege, during the pendency of the suit; yet it is permissible for the defendant to c.narge the untruthfulness of the affidavit, and upon sufficient proof to obtain the dissolution of the writ.
    This is the sense of all the adjudged cases in this court.
    In a settlement of accounts between landlord and tenant, and the mutual claims of the parties for and against each other, the party relying upon a contract either as supporting his own demand or disproving that of the other, carries the burden of establishing same by a preponderance of proof..
    APPEAL from the Fourteenth Judicial District Court for the Parish of Pointe Coupee. Talbot, J.

      Olivier 0. Provosty for Plaintiff and Appellee.

      Yoist & Olaibome and Lazarus & Luce for Defendant and Appellant.
   The opinion of the court was delivered by

Watkins, J.

The plaintiff sues upon alleged parol contracts of lease and sale, as existing between himself and the defendant, apper-taming to a crop of sugar, made during the year 1897; and his claim is, that there resulted from said transactions an indebtedness by the defendant to him of $2,098.00, for which he prays judgment.

He accompanied his allegation of indebtedness with averments .and prayer for a writ of sequestration, and same was accordingly issued.

A few days later, he filed a supplementary petition in which some modification of the statement in his original petition was made, and an additional sum of $900.00 is claimed; and he, also, claimed and procured an additional writ of sequestration.

Thereafter the defendant filed a motion to dissolve the two writs of sequestration, upon the ground, that (1) the affidavits upon which same issued, are and were untrue; (2) that the writs issued “without legal cause or good reason.”

He thereupon prayed for the dissolution of the writs, and for the assessment of $150.00 damages as attorney's fees, and $500.00 as special damages for loss of time, expenses, inconveniences, etc., and for procuring the release on bond of the property sequestered.

By agreement of parties, this motion was referred to the merits without prejudice, and the defendant filed an answer — the substance and' effect thereof being that plaintiff was entitled to credit for the price of cane in the sum of $2,907.4-0, and was indebted to him in the sum of $2,742.89, on open account, resulting in a credit balance in plaintiff's favor of $104.51.

On the trial there was judgment in plaintiff’s favor for the sum of $927.42, maintaining the writs of sequestration, recognizing the privilege of the plaintiff as seller of cane, and enforcing same against the property seized; and from that judgment the defendant prosecutes a suspensive appeal.

In this court the plaintiff and appellee has filed an answer to the appeal, and prayed for an amendment of the judgment appealed fl-om (1) so as to allow him the full amount he claimed and, (2) to recognize and enforce his contract of lease for the full period' of three years. ■

The substance of the plaintiff's petition is, that in January, 1897, he and the defendant entered into a contract, by which the latter leased to him one hundred acres of land on the Grand Bay and Nina plantations for a term of three years, beginning January 1, 1897; and that he bound himself to furnish to petitioner seed cane to plant thirty-three acres of said land, and to furnish forty acres of said one hundred acres already planted in stubble cane.

That he, also, obligated himself to purchase the sugar cane made by petitioner on said land, at not less than $2.25 per ton, and as much more as in the grinding season he would pay to any one else selling cane.

That by said contract, petitioner bound himself to take said land and cultivate, in cane, a quantity thereof thus planted, and to be planted in cane, and to sell his cane to the defendant, and to pay rent at the rate of $3.00 per acre per annum, and to pay for said seed cane and said stubble at the rate of $5.00 per acre actually planted; and that at the termination of said lease, the defendant was obligated by said contract to pay petitioner for the stubble and seed cane on the land, when returned, at the same price of $5.00 per acre of stubble land, that the seed cane could plant.

Plaintiff shows, that said contract was subsequently, by mutual consent, so modified, that petitioner took only ninety-five acres, instead of one hundred under the lease; and that only thirty acres of the land was planted in seed cane, instead of thirty-three as originally agreed.

That petitioner carried out his contract, and sold to defendant 1,05T tons of cane,' which he accepted and manufactured; and that there are in said land eleven acres of cane, all cut and ready to be hauled and delivered, which will weigh, as petitioner believeá, and therefore avers, 250 tons; and that the latter 250 tons of cane will be delivered and manufactured wi thin the next three days in the ordinary course of operations on defendant's plantation.

And that the defendant, in the course of the grinding season now going on, purchased cane at the price of $3.00, and is indebted to petitioner for the said one hundred and fifty tons already delivered, in the sum of $3,150.00, and for the said two hundred and fifty tons in the sum of $750.00, making a total of $3,900.00.

That in April, 1897, petitioner and defendant made a further contract by which petitioner obligated himself to let the defendant have the use of his eight mules, during the grinding season; and the defendant obligated himself to take off the cane crop of petitioner at fifty cents per ton — that is to say, to take charge of said cane crop in the field, and at his own expense to attend to the cutting of same, and transporting and delivering it at the mill; and that the defendant has no yet fulfilled said contract, in that said two hundred and fifty tons of cane have not yet been hauled and delivered.

And petitioner further shows that defendant being under the obligation to take off and deliver and purchase said cane crop for the purposes of this suit he considers said crop as good as delivered and bought by the defendant as per contract; and that the amount of two hundred and fifty tons is a low estimate, but that he reserved the right in a supplemental petition to state the facts in conformity to the figures.

lie shows himself indebted to the defendant for

Rent of said land in the sum of.$ 285 00

For stubble and seed cane. 350 00

For taking off said crop!. 650 50

And for store account.•. 100 00

And for other advances. 417 88

Aggregating.$1803 38

Shows that he has been unable to come to a settlement, and the foregoing figures are fixed subject to settlement.

He shows further, that defendant denies that said lease was for three years, and contends it was for one year only; and, should the court sustain that contention, and hold that the lease was terminated on the 1st of January, 1898, he avers then, that for the stubble and seed canenow on said land, and belonging to him, he is entitled under said contract to have and recover from the defendant $350.00, which would offset the amount above stated as due by petitioner to the defendant for the stubble and seed cane furnished by the defendant.

Petitioner avers, that to secure the sum of $2,098.00, he has a lien and privilege on the sugar, syrup and molasses,manufactured during the grinding season of 1897-1898 by the defendant to the amount of the production of the cane already manufactured, and to the amount of probable product of the said 250 tons of cane not yet manufactured; which product and probable product fully equal and amount to 200,000 pounds of sugar, plus two hundred barrels of molasses.

Petitioner fears and believes that said defendant will conceal, part with, or dispose of the sugar, syrup and molasses manufactured by him during the grinding season of 1897-1898, during the pendency of this suit; therefore, he prays as above stated.

The plaintiff appends to each of his petitions, original and supplemental, an affidavit in which he states that all of the facts and allegations contained in said petitions are true.

In his answer, the defendant pleads a special denial, and specially avers the truth to be, that he entered into a contract with 'the plaintiff for the year 1897, by which he rented to him ninety-five acres of land of the plantations mentioned, for a rental of $3.00 per acre; the respondent to furnish to plaintiff seed cane to plant twenty acres, forty acres thereof being already in stubble.

That, under said contract, plaintiff was to pay respondent, in addition to said $3.00 per acre for each acre of stubble cane, and, also, each acre so planted with seed cane, thus making a total of $635.00 to be paid him by the plaintiff.

• Defendant further represents, that under said contract, plaintiff was to pro'cure the necessary laborers, and diligently cultivate all of said land so rented to him, and during the grinding season was to cut, haul and deliver all the cane so produced on said land to the respondent at his gin house on the 'Grand Bay plantation, and respondent was to pay to said plaintiff the sum of $2.25 for each ton of cane so delivered.

lie shows further, that after said contract was entered into, it was discovered that the plaintiff was totally unable to carry out his part of the contract, and to properly cultivate the crop of cane on said rented land; and, that respondent was, therefore, compelled to advance to the plaintiff not only the household .expenses, but, also, the necessary advances to enable him to cultivate and make said crop.

That the plaintiff was unable with his own means and teams to cut, haul and deliver said crop of cane as agreed, and respondent was obliged to use his own teams and means to have the said cane cut, hauled and delivered, and that the expenses thus incurred for advances and furnishings in cash, supplies, and the use of teams and wagons, amounted to the sum of $2,077.89, as will be shown by reference to the detailed account annexed thereto, for which sum the plaintiff is indebted to him.

That said sum for advances, added to the $635.00 due for rent and seed and stubble cane, makes a total amount due by plaintiff to him of $2,712.89; and for said sum respondent has a lien and .privilege on all the cane produced on said land, and on all the sugar and molasses produced from same.

Respondent further avers, that the cutting and hauling of said cane had not been completed either at the time of the filing of the plaintiff’s original petition or of his supplemental petition; and that said suit was premature, and that the writs of sequestration issued without just cause, and that he has been damaged to the extent set forth in his motion to dissolve the writs of sequestration.

Wherefore, he prays, that the plaintiff’s demand be rejected with costs, and that there be judgment in his favor to the amount of damages claimed.

I.

The first question to be disposed of is the defendant’s motion to dissolve the writs of sequestration, the charge of which is, that the defendant’s affidavits are untrue, and that the writs issues without good reason or legal or just cause.

The affidavits are that all the facts and allegations of the petition are true; and the averments are, that the plaintiff “fears that Robert“son will conceal, part with or dispose of the sugar, syrup and mo- “ lasses, • * * during' the pendency of the suit.”

The following is.a summary of the evidence pro and con on the issue thus joined.

The plaintiff made this statement, viz:

“What led me to get a sequestration in this suit is that I owed Mr. “ Grand Decuir $100, and I gave him a draft for same on Mr. Robert- “ son, and Mr. Robertson refused to pay it. Mr. Decuir came back in “ the field with the draft, and he told me about it in the presence of “ Villarubia Decuir. Then, I went over and saw Mr. Robertson why “he did not pay that draft. He answered me that he was not any “ bank for me to draw on him, and he did not know whether he owed “ me or not.

“At the time he told me so, we had not finished with the 1051 tons “ cane, but there was something in that neighborhood, already deliv- “ ered. Then I asked Mr. Robertson for a settlement, and that we “ would find out whether he owed me or not. He told me he had no “ time to settle. That was about the 20th of December. The delivery “ of 1051 tons of cane began in November. By my contract with Mr. “ Robertson, he was 'to settle with me, as stated in document A, the “clause I refer to in the document is the clause 4th. During the “ same week, I saw Mr. Robertson again about a settlement, and he “ said he had no time and was too busy. About two weeks after, I “ went with my father to see Mr. Robertson about a settlement. lie “ told me he did not have time, in.the first place, and he would wait “ until he settled with his merchants, and .then after that he would “ settle with me, if he had any money coming from the merchant. I “ told him I thought I had the first privilege of being paid. lie said; “ ‘Well, you think so, but it’s not so.’ I asked him would he be willing “ to give me security for my crop, and then I would be willing to wait “ on him for the time specified for, then, I would be secured. He did “ not want to give me any security. lie said that he did not have to “ give me more security than I would him. So then, I came to. see “ Mr..Provosty, and asked him what I should do in the case.

“Mr. Robertson was shipping sugar every day to New Orleans, and “ it looked like he was going to ship all and I would not have any1 “ thing there to secure me, and then I got uneasy, not knowing Mr. “Robertson’s financial standing. From the way Iiypolite Bouligny “ spoke to me, he-was uneasy. Bouligny was a'tenant bn Nina planta- “ tion, like myself. lie did not see how he could have any claim o' “ any guarantee for what was coming to him, if anything was due him “ at the time. I mean, if Mr. Robertson owed him.”

“Q. — You have testified that you were uneasy with regard to the “security of your claim against defendant. Now, please'state “whether Bouligny entertained any apprehension in'the same connec- “ tion, with regard to his claim, and, if so, how did you know it ?

“Objection. — It is objected to on the ground that witness can not “ testify as to the state of mind of a third party. The court overrules “ the objection. To this ruling defendant excepts, and reserves a bill “ of exceptions.

“I know, from conversation with Mr. Bouligny, that he was afraid “ that defendant would ship all the sugar and that he would not have “ anything there to get a settlement from, as-Mr. Robertson was ship“ping sugar all the time as he made it. No one else spoke to me “ about it.”

•Pages 18 and 19 of printed record.

Edward Vives, Sr., for plaintiff, sworn, says:

“I am the father of the plaintiff in this suit. I weht 'to see Mr. “Robertson about a settlement of this matter for my son. On the “ last- day of the year I was present át a conversation between my son “ and Mr. Robertson. My son asked him for a settlement. Mr. Rob- “ ertson answered, T will not make a settlement before'I get through “ grinding, and moreover, I will not settle with yon before I settle witli “ my merchant, for I consider my merchant the privileged creditor. “ If there is any more over, I’ll pay you.’

“I told him I didn’t think he had a right to take the money of my “ son to pay his merchant. Then he said ‘I think otherwise.’ My son “ told him, ‘I drew a draft on yon for $100 and you refused to pay it.’ “ He said that he was no banker, that he didn’t know that he owed my “ son anything, or that my son owed him. Then I told him, ‘Why “ don’t yon settle?’ and he said, ‘Well, I have no time.’ My son told “ him, ‘I’ll have to proceed according to law.’ ■ He said ‘Go ahead and “ proceed; if you’ve got any money to spend, I’ve got some, too. I am able to spend $100, $300, $30,000.’ Then, seeing that, I told my son •“ we had better go and see a lawyer. We came to New Roads and employed Mr.'Provosty as a'-lawyer.” ■ '

Pages 27 and 28 of printed record.

The party referred to by the plaintiff in the course of his testimony, Hypolite Bouligny, was introduced as a witness in his behalf, and, in the course of his interrogation, the following occurred, viz:

“Q. — During the grinding season of 1897-98, were you uneasy about “ getting your pay for your cane, and that you might lose your claim?

“A. — No.” Transcript, page 39.

This witness stated, that he was a tenant of the defendant Robertson during the year 1897, under a verbal contract similar to that of the plaintiff.

Edward Vives, Sr., made the further statement that, when he went in company with his son to see Mr. Robertson, it was the last day of the year 1897, and his “son had already left the place.”

Transcript, page 42.

The foregoing is, substantially, all of plaintiff’s testimony with regard to the facts upon which he sued out the writs of sequestration.

. Per contra Mr. J. V. Decuir, manager of the defendant’s Nina plantation, says:

“I didn’t see anything that would induce anyone to apprehend, or “fear, that Mr. Robertson was going to make way with the crop of “ sugar. At the time of this seizure, there were several hundred T>ar- “ rels of sugar in the cooper shop. I didn’t know how much sugar “ there was in the hot room, but there was always plenty of it there. “The grinding ended on the 20th of January.

“I receive salary as manager on the place. .1 got my yfinal settle- “ ment in May. I didn’t have any apprehension; I wouldn’t have “ waited that long if I had. My salary is $100 a month.”

Page 33 of the printed record.-

Again:

The barrels of sugar were stored in the cooper shop, I thinh, in the “ latter part of December, and remained there until the latter part of “ January. It was about the latter part of December that it was “ stored there. I couldn’t say whether the shipping was going on reg- “ ularly 'on the plantation. I do not think they shipped any while it “was being stored in the cooper shop.”

Page 34 of the printed record.

The statement of the deputy sheriff, Joseph Dessommes, who made the two seizures under the writs of sequestration, is as follows, viz:

“ I am a deputy sheriff of this parish. I am the officer who made “ the two sequestrations in this case. When I made the two sequestra- “ tions, there was a large quantity of sugar in the cooper shop. The “ size of that shop is about 100 feet long, by 30 or 40 wide. The whole “ floor of the building was covered with barrels of sugar, two tiers “high. I don’t know that the second tier was entirely complete. “ There was a lot in the sugarhouse, in barrels. I can not say how “ much there was. There was a lot of loose sugar that they were “ barreling. The sugarhouse was in full operation at the time.

“ When I went to make the second sequestration, I found about the “same sugar. I did not go in the sugarhouse the second time; I “ seized sugar in the cooper shop. I seized sugar, the first time, in “ the cooper shop, but I went in the sugarhouse. When T went there “ the second time, everything was moving; the sugarhouse was in full “ operation.”

Pages 35 and 36 of the printed record.

The statement of F. O. Lieux is, that he is the owner of the Grand Bay plantation which he leased to the defendant in 1891, and is acquainted with both of the parties to this suit.

That “Mr. Robertson had about between thirty-five and forty mules “ on Nina at the time of this siezure. He had seven or eight wagons “ on Nina. Nina was well stocked with agricultural implements, etc.,- “ plenty of corn, forage, and everything of that kind. Nina was well “ supplied with seed cane at that time. It was well supplied with one “ year stubble. In fact, there was enough seed cane to plant about “ 300 acres, more or less. Nina plantation at the time of the seizure, “ with all those things on it, was worth about $25,000.

“The Grand Bay sugarhouse was lighted 'by electricity, the plant “belonging to Mr. Robertson. I think he paid bewteen'$900 and “ $1,000 for it. lie x>ut it up last year, in the summer. At the time “ this suit was brought, all of tírese improvements, buildings, mules, “ and cattle, on Grand Bay, about which I have testified, belonged to “ Mr. Robertson individually. . At the time this sequestration was “ made, I had no knowledge of any financial embarrassment on the “ part of Mr. Robertson, whatever. I was still living on the place at “ the time, and am living there still. When I rented out my planta- “ tion, I reserved two houses and my yard, with all appurtenances.

“The affairs of the xfi&ntation and of the sugarhouse, at the time of “ the sequestration, were being conducted in the usual manner, in a “ business like way.

“Prior to this sequestration, Mr. Robertson made no shipment of “ sugar or molasses otherwise than in the usual business way. Tf he “ had done so, I would have been apt to have known it.’r

Pages 38 and 39 of printed record.

Again:

“The capacity of the Grand Bay mills is about 200 tons of cane, “about 25,000 pounds of sugar. When I say 25,000 pounds, it is pretty “large. Mr. Robertson pays $2,000 net, he pays all expenses. The “ taxes are between $290 and $300. Apart from the Nina xfiantation, “ Mr. Robertson had, at the time of the seizure, other -prox>erty liable “ to seizure, viz: he had ten mules on Grand Bay, four liorses, and “ eight or nine cows, some of them with calves; about thirty hogs, “ about five or six sheep, and the railroad from the sugarhouse to the “ river, which is about three-quarters of a mile long, with rolling “ stock, and railroad from my sugarhouse to Nina, a mile and three- “ quarters long, with six conveyors which cost him, I think, from $150 “ to $200 axfiece.”

Page 37 of printed record.

The following is the statement of the defendant as a witness in his own favor, viz:

“Up to the time of' the two sequestrations in the case, I had done “nothing with any portion of my crop and property in such'a way as “ to 'induce any one to believe that I would conceal, or part with the “ same or part thereof, in such a manner or with the intent to place it “ beyond the reach of my creditors, or to deprive anyone of' his claim “ against me on said property. The, total amount of sugar manufac- tured by me during that season was one million and a half pounds. “ 1 was not, at the time of the issuance of either of the sequestrations “ in this case, nor had I been prior to those dates, shipping or dispos- “ ing of any of my sugar and molasses outside of the usual course of “ business. I was not doing much shipping prior to these sequestra- “ tions. I have the bills of lading of sugar shipped by me. Oom-“mencing with the 17 th of December, my shipments were as follows: “ 84 bbls. of sugar. This shipment comprised lots 4, 5 and 0. Dec. “ 18th, lots 4 and 5 again, 45 barrels. Dec. 24th, lot 10, 100 barrels of “second sugar. Dec. 27th, 21 barrels; on the 29th, 72 barrels of su- “ gar, lots 4, 5, 54 and 55. Dec. 30th, 101 barrels, lots 11, 55 and 50 “ J an. 2nd, lot 11, 69 barrels; lot 54, 21 barrels. -Jan. 5th, lots 59, 60 “ and 61,100 barrels. Jan. 10th, lots 12 and 13, 39 barrels and 54 bar“rels of molasses. Jan. 23rd, Jan. 17th, 44 barrels molasses. Jan. “23rd, 241 barrels sugar, lot 12, 14, 61, 62, 67, 70, 73 and 75, and 61 “barrels of molasses. Jan. 26th, 296 barrels sugar, lots 12, 56, 61, 62, “ 63, 64, 66, 67, 71, 72, and 107 barrels molasses. Jan. 26th, lot 12, 9 “barrels; lot 64, 4 barrels. Jan. 29th, 167 barrels of sugar, lots 12, “ 62, 64, 66, 67, 70, 71, 72, 73, and 70 barrels molasses. This comprises “ the sugar in barrels, exclusive ■ of $2,000 worth of sugar in cars in “ the hot room, which I could not ship.

“At the time the sequestrations were made in this ease, I owned the “ Nina plantation and everything on it, comprising forty odd head of mules, complete stock of agricultural implements, seed cape wind- “ rowed 100 acres, more or less, all the stubble on the place, store build- “ ing, twenty-four cabins, one fine dwelling house, a large barn full of “corn and hay; also, 7 wagon gears and everything complete. I own “ ten mules on the Grand Bay plantation, which I had paid for; 1% “ miles of railway, with rolling stock for same, used for the, purpose of “ conveying cane, which cost me over $3,000; and for which I paid cn- “ tirely, and also % of a mile of railroad running from Grand Bay “ sugarhouse to the river, used for freight, for which I paid $1500, and “was entirely paid for. Also one dwelling house, exclusive of the “ aisle, which cost about $400, one other dwelling house which cost me “ $100, one scalehouse and scale complete, which cost me about $400; “ one blacksmith house complete, which cost me about $200; one electric plant, new, complete, which cost me'$100; two Baldwin sugar “ shakers which cost me $150; fifty sugar cars, which cost me $600; several pumps valued at about $200; one upright engine, new, about “ $100 — all of which were paid for at the time of this seizure. ■ Besides “ this enumeration, I had other values in property-, such as having or “ had constructed, an entirely new mill and which cost me $1,000, and “ for which I had paid for. I had about $5,000 or $6,000 at my mer- “ chants, as near as I can recollect. I also had, at the time of the first “ seizure, and, also, at the second seizure, 600 barrels of sugar in the “cooper shop, 200 and odd barrels in the sugarhouse, also about * 300 “barrels, estimated, in the hot room in the cars; also about 300‘bar- “ rels of molasses on hand -in barrels. This sugar amounted to $16,000 “ at least.

“At that time, the Nina plantation, with what was on it, was worth “ $30,000. I wouldn’t have taken less than that for it. I did not tell “ Mr. Yives that I would settle with my merchant before I settled with “ him, and after settling with my merchant, would settle with him if I “ had any money coming from my merchant. I did not tell him any- “ thing like that. I did not tell him that my merchant had the first “ privilege. The first tinie, I simply told him that he knew perfectly “ well that I was working 18 or 19 hours a day, that I was doing all of my own clerical work, and really did not have the time to do any “ kind of work that could be put off at a further day. He knew per- “ feetly well that he was not out one five-cent piece; that he had canes, “ too, in the field, that I had been compelled to harvest his crop to save “ the money that I had already spent on it; that I was buying canes of “ several other parties outside of the plantation to whom I had not ad- “ vanced a cent during the whole year.

“These gentlemen never worried me for a settlement, and waited “ upon my time, and I certainly thought that he could do likewise, and “ that just as soon as I was possibly able, I would make up his account “ up to date, and then add to it the proceeds of the balance of his cane, “ which was still out in the field, and whatever was coming to him, he “ would most positively get immediately. This did not seem to suit “ him, however. He went away and then consulted Mr. Pfovosty, who “ called upon me in person, by himself. He requested to lcnpw why we “ could not come to an understanding or would not give Mr. Yives his “ account. I told him what I had told Mr. Yives, -and he couldn’t see “why I couldn’t do it. He failed to see why I could not make out “ that statement, and he requested me to try and make it up for him.1 “ I told him I would try and do so, and he said, ‘When V This was on, “ I think, about a Monday; I said about Thursday or Friday. All this “conversation took place at the Marionneaux store. The latter part of “ the week, he came to the sugarhouse accompanied by the two Vives, “ the elder and junior.

“He inquired of me whether I had made out the account as rcquest- “ ed. I told him I had not -finished it, but I had started on it, and “ hoped to have it ready the following day. He said that he would “ come for it himself. Instead of doing so, he wrote me a letter that “ having been called away on some business, I think to Baton Rouge, “ to please mail the statement to him at New Roads, and that state- “ ment, showing exactly how I stood with Mr. Vives, errors and omis- “ sions excepted, in the ordinary course of account, was duly sent to “ Mr. Provosty the next day, and was in the New Roads postoffice the “night before the first seizure. ■ He acknowledged the receipt of my “ account, under date of Jan. 13th, 1898, and this account is now of- “ fered in evidence and marked B. See p. — of transcript.

“Of course, I was seized and had to go to New Roads to bond the “ same out. I had to employ a lawyer immediately, as I did not know “ how this was going; to affect me, as it caused immediately a good deal “ of comment and gossip among my creditors. Having bonded out “ same, I resumed my vocation and completed hauling of the balance “ of the canes in the field, when I was sequestered again. I had to “ leave my business again, come to New Roads, employ counsel, and fix “ another bond.”

Pages 43/44, 45, 46 and 4Y of the printed record.

The following is the statement of Hon. O. O. Provosty, counsel for the plaintiff, viz:

“Cross-examination:

“My impression is, tliat I made my first visit to Mr. Robertson be- “ fore the suit. It was five or six days before the suit that I made my “ first visit. It was at the Marionneaux store that I saw Mr. Robert- “ son. I think it was on that occasion that I visited the sugarhouse, “ which was then in operation. Matters seemed to be going on there, “ in the sugarhouse, just the same as they would be .in any sugar- “ house of the same kind in the grinding. The date of my second “ visit was a few days after I had made my first visit, and then, of “ course, just before the seizure. This is my impression. The sugar- “ house was in operation then. There was a good deal of sugar there. “I could not see any haste or excitement anywhere.. So far as I could “ see, everything was moving smoothly. The contention between Mr. “ Vives and Mr. Robertsoir was that, Mr. Robertson contended, that he “ was not liable to Vives for more than $2.25, and, also, complained “ that he had io carry Mr. Vives, and had to do more for him than he “ agreed to do. The eleven acres of cane were not then ground. Mr. “Robertson did not refuse to make a settlement; he said he was very “ busy and did not have time to make a settlement.”

Page 30 of printed record.

In our opinion, the foregoing testimony clearly shows, that the plaintiff’s alleged fear, that the defendant would conceal, part with, or dispose of his sugar and molasses during the pendency of the suit, was not well grounded, and that the writs of sequestration were incorrectly obtained.

He affirms it to have been a fact, that the cause of his taking out the writ of sequestration was, that the defendant declined to pay his draft for $100.00 in favor of Grand Decuir; but he further states that when he called upon the defendant to learn his reason for declining to pay the draft, he replied that he had not finished grinding his sugar, and did not know whether he owed him anything or not. That, thereupon, he demanded a settlement, and his reply was that he did not have time to settle with him.

“That,” the plaintiff as a witness, says, “was about the 30th of December, 1897;” and, at that time the plaintiff had not completed the harvesting of his cane, nor completed his delivery thereof.

The proof and pleadings abundantly show, that the plaintiff was renting land from the defendant for that year, and that defendant had furnished the plaintiff his plantation and family supplies, and, consequently, there were obviously mutual accounts between the parties at the time.

The.proof further shows, that there was a difference between the parties as to the price defendant was to pay the plaintiff for his cane.

The plaintiff sought to justify his.alleged apprehension of defendant’s disposition of his sugar, by quoting the statement of another tenant on the Nina plantation, to the effect that he was “afraid that de- “ fondant would ship all the sugar, and that he would not have any- “ thing to get a settlement from, as Mr. Robertson was shipping sugar “ all the time as he made it”; but, when the plaintiff placed him on the stand as his own witness, and propounded to him that direct question, his prompt response was, “No.”

And plaintiff frankly admitted, that no one else had spoken to him on the subject.

The proof shows, that at the time of the seizure, there were several hundred barrels of sugar “in the cooper shop,” and a considerable number “in the hot room.” That they were deposited there in the month of December, and remained there until the latter part of January. That state of facts is affirmed by more than one witness, and it is verified by the deputy sheriff who made the seizure.

The defendant as a witness, and two others, testify, that there had been shipped by defendant, only small amounts of sugar, and, as was customary with him in the usual -course of his business.

Defendant states that it will appear from his bills of lading, that during the month of December, and up to the date of the seizure under the first writ of sequestration in January, 1898, there had been shipped only 680 barrels of sugar.

But, the proof is abundant to the effect that the defendant owned one plantation well stocked in every respect and worth $25,000; and a large quantity of other property in addition.

That the Nina plantation contained nine hundred acres,, all of which was in cultivation, and that the plaintiff only rented ninety-five thereof.

That, in addition, the defendant operated the Grand Bay plantation under a five year lease, and had it very well stocked and equipped for the cultivation of cane and manufacture of sugar.

That among its equipments was, an electric light plant in full operation, and a tram, ox railway extending from Grand Bay plantation to the Mississippi river, a distance of one and three-quarters of a mile, with a complete supply of rolling stock, etc.

The plaintiff’s petition and affidavit for the issuance of the writs of sequestration are formal and fully comply with the requirements of the code, but, the defendant denies the reasonableness of the fear he expressed; and not only has the defendant proven the groundlessness of that fear, but the plaintiff himself as a witness puts his action upon an altogether different ground.

The recent decisions of this court, are to the general effect that it was sufficient for the plaintiff to allege and swear (1) that the debt claimed was due and owing, (2) that he had a privilege on the property described, and (3) that he “fears that the defendant will conceal, “ part with, or dispose of the same during the pendency' of the suit.”

Lowden vs. Robertson, 40 Ann., 825.

Goldman vs. Goldman & Masur, 47 Ann., 1463.

Hewitt vs. Williams, 47 Ann., 747.

That postulate rests upon the textual provisions of the Code of Practice 275, No. 8; but it only extends to the sufficiency of the plaintiff’s averment and oath, and not to the truthfulness thereof.

For, notwithstanding the court said in Lowden vs. Robertson, that “ the plaintiff is not required to swear that he has good reasons to fear, “but simxDly that he fears (C. P., 275, No. 8), yet the court recog- “ nized defendant’s right to move to dissolve the writ on the ground “ that the plaintiff’s affidavit is untrue, though it would be certainly “ difficult to establish I hat such an allegation is untrue.”

The opinion in Lowden vs. Robertson is based exclusively upon Wells vs. St. Dizier, 9th Ann., 119; but the motion to dissolve the sequestration was based upon “errors apparent upon the face of the record.”

Mabry vs. Tally, 15th Ann., 62, rests upon the same ground; and, likewise, Blanc vs. Wallace, 26 Ann., 492.

In Milling Co. vs. Lawler, 39 Ann., 572, the defendant filed a motion to dissolve a sequestration on the ground that the oath of the plaintiff was untrue, and that the acceptances sued on were not due and the suit premature; in the district court the writ was dissolved, and by this court, that judgment was affirmed.

The same conditions were presented in Egan vs. Fush, 46th Ann., 474, wherein all the authorities are collated.

But in American Furniture Co. vs. Grant-Jung Furniture Co., 24 Southern Reporter, 182, the question herein considered was expressly decided by this court, on the lines herein laid down.

We take it to be the undoubted sense of all the authorities that a-sequestration must be dissolved, if the proof administered discloses that in point of fact, the oath of the plaintiff is untrue. In our judgment, the testimony fails to sustain plaintiff’s fear, and the writs must be dissolved.

The following is the account which is annexed to the defendant’s answer, viz:

“A. V. RobertsoN,

Or.— 'E. Vives, Jr.

By 1186 39-2000 tons cane, at $2.25.$2668 90

32 61-100 acres stubble, at $5. 163 50

Seed cane to plant, 15 acres, at $5.'.. 75 00

Dr.— $2907 40

(1) To cash for cultivating crop. K © tO w

(2) To cash for cutting, loading, etc. W © 00 CO co

(3) Interest on $425.19. CO Ox H

(4) 2% per cent, commission for advances Ci to |-i O

(5) 2 cords wood. tO

(6) 3 moss collars. t¡{5 Ox

(7) 5 mules one-half day cultivating .... •4 Ox

(8) 1 2-mule cart, cultivating, 1% days... w ©

(9) Blacksmith work.:. © ox h

(10) Hauling and planting, 9 teams. h ox W

(11) 15 bushels peas at $1.75. to ox to

(12) 4 hoes and handles, at 75c...

(13) 30 sacks oats, 150 bu., at $1.75 sack.... © w ox

(14) Windrowing seed cane . © io ©

(15) 30 61-100 acres plant cane, at $5. lO 1 — 1 ©

(16) 40 12-100 first year stubble, at $5. .. !. © o © © C*

(17) 30 61-100 acres fall plowing, at $4. .. ^ ^ © CO rH

(18) Rent of 58 3-mule cai'ts, at $3.50.

(19) Rent of 17 4-mule wagons, at $4.

(20) 22 91-100 acres corn land, at $4.

(21) 72 73-100 acres cane land, at $2. °°

(22) Family supplies from store and cash. . —$2742 89 © §§

To your Or. $164 51”

The following is an extract from the brief (p. 3) of plaintiff’s counsel which is self-explanatory, viz:-

“For convenience we will, in discussing the items of difference be- “ tween plaintiff and defendant, adopt the order in which these items “ are found in this account filed by defendant.

“But, first, we will eliminate'those as to which there is no contest. “ They are:

“On the credit side:

“Thirty-two and sixty-one one-hundredths acres stubble at $5. $109 50

“Seed cane to plant fifteen acres, at $5.'. 15 00

“And-to the debit side:

“Cash for cultivating1 crop.$425 19

“Interest on $425.19 . II 95

“Three moss collars . 2 25

“Five mules, one-half clay cultivating. 2 15

“One 3-muIc cart, one and one-half clays. 1 ,50

“Blacksmith work . 13 65

“Hauling and planting, nine teams. 33 45

“Fifteen bushels of peas at $1.15 . 26 25

“Four hoes and handles, at 75c. 3 00

“Thirty sacks oats . 52 50

“Thirty and sixty-one one-hundredths acres plant cane, at $5. 163 50

“Forty and twelve one-hundredths acres first year stubble at $5 200 60

“Rent for seventy-two and seventy-three one-hundredths acres cane land, at $3. 216 19

“Family supplies from store and cash. 123 20

There is no contest as to the following1 additional items:

“Windrowing1 seed cane, $62.50.’’ Of this item, defendant says in his testimony (p. 60) : “This is a clerical error made by me. It should “ have been $12.”

“Rent of 22 90-100 acres corn land at $4, $91.60. By the contract the land was rented at $3, so alleged in both the petition and the “ answer. The charge of $4 here made instead of $3 was admitted in “ the lower court to have been made in error, and that it should have “ been $3.”

It thus appears, that on the credit side of defendant’s account, two out of the three items are admitted by the plaintiff’s counsel to be correct, and, consequently, there remains for examination the single item of amount defendant is due plaintiff for the purchase price of cane — whether more than $2,668.90, as admitted.

Of the items on the debit side of the defendant’s account, the following are admitted, viz:

Numbers 1, 3, 6, 7, 8, 9, 10, 11, 12, 13, 15, 16, 21 and 22.

The remaining- debit items which are contested are the following, viz:

“No. 2 — To cash for cutting, loading-, etc.$880 50

“No. 4 — To 2% per cent, commission for advances. 10 62

“No. 5 — 2 cords of wood . 3 25

“No. 14 — Windrowing seed cane . 62 50

“No. 17 — 30 60-100 (acres) fall plowing at $4.00. 130 44

“No. 18 — Rent of 58 3-mule carts at $3.50. 203 00

“No. 19 — Rent of 17 4-mule wagons at $4.00. 68 00

“No. 20 — 22 91-100 acres of corn land at $2.00.'. 218 19

These aggregate the sum of.$1585 00

As against amounts admitted aggregating. 1157 89

Deducting the latter sum from that admitted to he due, there appears to he only about fifteen hundred dollars in controversy.

The two items for which credit is given plaintiff on the defendant’s account, aggregating $238.50, being admitted, there remains but one item of credit which is open to discussion, and that is the following, viz:

. “By 1186 39-2000 tons of cane at $2.25.$2868 90”

PlaintifE’s claim in his original petition is, that he had already delivered to the defendant one thousand and fifty-one tons of cane for which he was entitled under his contract to receive three dollars per ton, or, the aggregate sum of $3,153.00; and that there were in the field at the time of filing suit, about eleven acres of cane already cut but not delivered, the estimated-weight of which was two hundred and fifty tons, worth $750.00.

In his supplemental petition his averment is, that this cane had been actually delivered, and weighed three hundred tons, and was worth $900.00 — the whole of the cane aggregating in value $4,053.00.

From this statement it appears that plaintiff claims for one hundred and sixty-five tons of cane more than defendant concedes; and insists that the defendant contracted to pay three dollars per ton, while he asserts that he only agreed to pay $2.25 per ton.

Plaintiff as a witness states, that defendant made an agreement to “ pay not less than $2.25 per ton for cane * * * and if the price “ would justify it, he would pay more, or as much as he could.”

He then makes reference to the pro jet of a contract unsigned, which contained a statement of the price proposed in terms, somewhat like that of the plaintiff.

This memorandum, he claims, was furnished him by the defendant, and lie relies upon it as a circumstance tending to corroborate liis recollection of the parol agreement.

The plaintiffs father says that, subsequently, in a conversation with the defendant, he asked him how much he was to pay his son, and he said $2.25.

Tie then remarked to the defendant that he had understood that under the contract he was to “pay $2.25, or as much as he would pay to any other”, and he said “No; T said I would pay as much as I could.” But this witness, made no reference to the memorandum of which the plaintiff spoke.

Another witness testifies, that he had a conversation with tlje defendant, and that he made a statement somewhat similar to that mentioned by the previous witness.

the statement of some of the witnesses, is that they sold cane to the defendant in 1897 for $3.00 per ton; and that of some others was that they sold at $2.25. ,

The statement of the defendant is, that “the price for cane deliv- “ ered at the Grand Bay sugarhouse was thoroughly understood, with- “ out a prticle of difference to be $2.25 a ton. This was the final price “ as understood in this verbal agreement. This practically terminated “ any agreement that we had, or ever did have, concerning' the price or “ the conditions.”

lie. positively affirms, that the words in the projet or memorandum of agreement, viz: “Not less than,” before the figures “$2.25”, were not written by him; and no witness was produced who denied his positive assertion in that respect.

Mr. «F. O. Lieux, the owner of Grand Bay plantation, which defendant had under lease at the time, testified 'as follows, viz: ’

“I was present when Mr. Robertson and Mr. Vives had an agree“ment about the rent of land. That agreement was that Mr. Vives “was to rent so many acres of land "x" * * * *

“He was to cultivate that in cane, or corn, and for his compensation “ he was to receive $2.25 for all the cane he would deliver at the su- “ garhouse.”

In the course of the cross-examination of the plaintiff he said the contract was made with the defendant at Grand Bay sugarhouse in the presence of Mr. Ovide Lieux and Howard Breaux; but from the foregoing testimony of Mr. Lieux, it appears that he disagreed with the plaintiff and affirms the correctness of the testimony of the defendant.

Our conclusion is, that the preponderance and weight of the testimony establishes the contract price of eane per ton to have been $2.25.

With regard to the quantity of cane which the plaintiff delivered, he makes this statement, viz:

“At the time of filing' this suit, there had been delivered and manu- “ factured 1051 tons of cane. I got these weights from Mr. Sarrazin, “ the cane weigher. Mr. Sarrazin was Mr. Robertson’s cane weigher. “ I made a memorandum of this tonnage.”

Page 10 of the printed record.

In the course of the examination of the defendant as a witness, the following occurred with regard to the tonnage of the cane, viz:

“On the credit side of the account, item No. 1,' 1186 tons and 39 “pounds of sugar cane at $2.25, total $2668.90, represents the total “ amount of all said Vives’ crop delivered' at Grand Bay scales and “ sugarhouse, as presented to me by my cane weigher and for which—

“Plaintiff objects to the testimony of the witness as it purports to “ be founded on statements made to him by his weigher, on the ground “ that it is hearsay evidence, and that the books of the party can not bo “ admitted in evidence in his own behalf.

“By the Court:

“I regard the weigher as acting for both the producer and the man- “ ufaeturer, and, as plaintiff has predicated his statements of 1051 “ tops of eane on the representation? of the weigher, I think the privi- “ lege should be accorded to the defendant.

“To this ruling plaintiff excepts and reserves and makes this his bill “ of exceptions.

“I got these weights from the same weigher who weighed all the “ cane that was brought to the Grand Bay sugarhouse. Items Nos. 2 “ and 3 are not disputed.”

Page 142 of printed record.

In our examination of the breif of the plaintiff’s counsel, we have found no reference to the foregoing ruling of the court; and inasmuch as both parties resorted to the same source of information, with' regard to the tonnage of the cane, the court is disposed to take the statement as correct.

The only argument opposed to it is founded on analogy, and it refers exclusively to the part of the crop that was produced upon the eleven acres which were undelivered at the date suit was filed; but it is fully met and overcome by the actual weights of the sugar-weigher.'

Had either been dissatisfied with that evidence, the books and records of the manufacturer, and the testimony of the sugar-weigher were easily accessible to both litigants. . 1

Having reached this conclusion, we find that the true credit in favor of the plaintiff is given in the. defendant’s account at $2,901.40; and the only matter remaining open for decision is, the amount of debt there is legally chargeable against him.

III.

The items of defendant’s charges which plaintiff admits to be correct, aggregating- $1151.89, there remains for' examination contested items aggregating $1585.00. • •

(a.) The disputed charge is that of “cash for cutting, loading, etc., “$889.50.”

The statement of the plaintiff with regard to this item, is as follows, viz:

“The item, cutting, loading, etc., $889.50, is not correct, because “ Mr. Robertson and I made a contract for taking off my 'crop for “ fifty cents a ton and I was to furnish him my mules to work them “ on the place, he to feed them during the time he needed them. He “ made this- contract in April or May. Mr. Robertson sent for me. I “ went to his house, and he told me that he wanted me to furnish him “ security for the feed bill. I told him I did not have any s.eeurity. “ He said, T have to pull through this year, but I’ll not do it another “year.’ Then he asked me how much I could take the crop off for. “ I answered him that I could for fifty or fifty-five cents a ton. Tie “ told me he would take it off for fifty cents if I would furnish him my “ mules so that-he could work them on the place. 'I told him I would, “ if he would feed them during the time lie would use them. Mr. “ Robertson did take off my crop. There was no question at any time “of his not doing so. He worked my eight mules from the begin- “ ning of grinding until the end. By taking- off a crop, it meant cut- '“ ting,, hauling and delivering cane to the mills. Taking the cane “ standing and delivering to the mills, and doing- anything that is necessary to do, including windrowing, in case windrowing is neces- “ sary.”

Page 20 of printed record.

The purport of-this testimony is, (1) that plaintiff made a contract with the defendant ito take off his (plaintiff’s) -crop, (2.) that plaintiff 'was to furnish his -eight mules to assist in performing- the work, and -defendant was to feed.them, (3) and defendant was to -receive fifty-cents per ton for taking off !thc crop.

That “taking off the crop meant cutting, hauling and delivering ■cane at the mill; and windrowing the cane if necessary.”

On cross-examination plaintiff says the cane on the eleven acres in ■question was part of the land he leased on Nina plantation, and the cane was delivered after the filing of this suit; and that same was hauled to the sugarhouse by the defendant, and by Ms team.

Another witness makes the statement that “Mr, Robertson did liol ■“ deny having- made a contract to take off the crop (of plaintiff) at fifty cents per ton; but he explained very fully why the settlement “ could not be made on that basis, the substance being that Vives had “ not kept his part of the contract, or something of the kind.”

That statement does not, in our opinion, strengthen the xdaintiff’s declaration; on the contrary it rather militates against it.

The testimony of the defendant is as follows, viz:

“The second item, cash paid for cutting, loading, etc., $889.50. “ This amount was what I actually paid out for labor only for moving' “ the said Vives’ crop to the sugarhouse as enumerated,”

Page 41 of printed record.

ITe states further that plaintiff knew perfectly well “that he had cane in the field that (witness) had been compelled to harvest (in order) to save the money (he) had already spent on it.” etc.

Record, p. 45. Page 61 of Record.

His evidence on this question is concluded as follows, viz:

■“I positively deny having ever entered into such a contract, or even “ spoken of it, as testified to by Mr. Vives, that, to handle his^crop; to “ cut, load and haul same; pay the laborers and furnish the teams. “ The closest distance that his crop had to be hauled was about six or “ seven acres, and the farthest about a mile and a half. That nearest “ cane, there was about 15 acres of it, and that is the cane which he “ calculated cost him about $1 to haul per ton.” Page 69 of Record.

Page 41 of printed record.

Consequently, the plaintiff having affirmed the existence of a contract with the defendant to bear off the crop at fifty cents per ton, and the defendant having positively denied it, the matter is set at large; and the failure of the defendant to disavow it to a third person does not carry the preponderance of proof to the plaintiff, in the face of his contemporaneous assertion that any settlement on that basis was impossible.

We feel bound to affirm that the alleged contract is not established; and, as the assertion of the defendant is positive, that he actually expended the sum of $889.50 in cash as charged in his account, we are equally bound to allow it as a proper charge against the plaintiff.

(b) Item 4, “2% per cent, commission for advances, $10.62,” is sworn by the defendant to be correct, and the plaintiff makes no denial. It must, therefore, be allowed.

(c) Item 5, “2 cords of wood, $3.25,” must be reduced to $1.00 per cord, the plaintiff acknowledging that value, and not denying the amount. We therefore place that item at $2.00.

(d) Item 14, “Windrowing seed cane, $62.50” should be reduced to $12.00, inasmuch as the defendant admits in his evidence that the charge of $62.50 was a clerical error. Transcript, p. 60.

(e) Item 17, “30 61-100 fall plowing, $130.44,” is denied in ioto by the plaintiff on the ground that same was not made mention of by the defendant as a part of their contract; its correctness is affirmed by tlie defendant. It must be rejected and disallowed for the reason, that it should have been fully explained and made certain by the defendant.

(f) Item 18, “Rent of 58 3-mule carts at $3.50, $203.00,” is denied by the plaintiff on the ground that same was included in the charge for bearing off the crop by the ■ defendant; and the defendant admits that “this is the price he charged the plaintiff for loan or use of his “ wagons and carts and teams in removing his crop of cane to Grand “ Bay sugarhouse.” We think it clear that this item is an erroneous charge and should be disallowed.

(g) Item 19, “Rent of 17 4-mule wagons at $4, $68.00,” is in exactly the same situation and for a like reason must be rejected and disallowed.

(h) Item 20, ‘.‘22 91-100 acres of cane land at $4, $91.60,” should be reduced to $3 per acre, and should be reduced on the averments of defendant’s answer, fixing the price per’ acre at $3.00.

Summarizing the foregoing conclusions and deductions, we find that the defendant’s credits should be reduced by the sum of $470.29; and as thus reduced his total credits aggregate the sum of twenty-two hundred and seventy-two and 90-300 dollars, and deducting that sum from his total debits, we find the balance due the plaintiff to be six hundred and fifty and 48-100 dollars.

We are of the opinion that plaintiff has failed to establish that his contract with the defendant was for a longer term than one. year— that of 1897; and, indeed, the tendency of the evidence is to the effect that plaintiff had actually removed from the leased premises before the end of the year, and prior to the institution of this suit.

But, it necessarily results from the fact that the lease is held to have terminated on the 31st of October, 1897, that plaintiff is entitled to be re-imbursed for the stubble and seed cane then on the rented land, and which enured to the defendant’s benefit, and the value of which approximates about $225.00 — as we ascertain by a comparison made of other values mentioned in the evidence.

But, this claim is offset by the credits defendant’s account gives the plaintiff for stubble and seed cane aggregating $238.50 — thus making an offset.

The result of our investigation of this record, and a fair and dispassionate consideration of all the evidence and arguments, has led us to the conclusion that the judgment appealed from should be reduced from the sum of ($927.42) nine hundred and twenty-seven 42-100 dollars, to the sum of ($650.48) six hundred and fifty and 48-100 dollars; and that the two writs of sequestration should be dissolved.

In consequence of the dissolution of the plaintiff’s writs of sequestration, it becomes necessary that we should pass upon the defendant’s claim for damages.

On the'record, and in view of our judgment dissolving the writs, we are of opinion that defendant is entitled to a reasonable compensation for his attorney’s fees, and we fix the amount at fifty ($50.00) dollars; but, we are of opinion that his demand for special damges is not sufficiently established by proof, and that same should be rejected and disallowed.

It is therefore ordered and decreed that plaintiff’s writs of sequestration be dissolved at his cost in both courts; and that the defendant do have and recover of and from the plaintiff the sum of fifty dollars, as attorney’s fees for dissolving the writs of sequestration.

It is further ordered and decreed, that the defendant’s demand for special damages be rejected and disallowed; and it is further ordered and decreed that the judgment in favor of plaintiff and appellee be; reduced to the sum of six hundred and fifty 48-100 dollars, and that as thus amended, the same be affirmed — the cost of appeal being' taxed against the plaintiff and appellee.

Rehearing refused-


source: Caselaw Access Project

author: Watkixs, J., Breaux, J. Blanchard, J.

license: Public Domain

text:
    No. 12,633.
    Union National Bank of New Orleans, vs. The Manhattan Life Insurance Company of New York.
    Syllabus.
    One applying' for life’ insurance stated in liis application for a policy, tliat lie had never at any tifne prior, applied for a policy of insurance on his life and been rejected.
    This was not true. He had applied and had been rejected, not on account of ill-health or tuisotmdness of any kind, but because of his unusual request in regard to his age. To this stage of the ease, the court affirms weil vs. New York Life Insurance Co., ATth Ann., 1105, as applying to the facts the head note thus far indicates.
    But it further appears that the insurance was taken for the security of a creditor of the insured, and this to the knewledge of the company, that all the premiums paid were paid by the creditor, amounting to more than three thousand dollars.
    The company had at hand or within its reach evidence of the misrepresentation which consisted in failure to disclose that he had been rejected for the reason that he had asked to be permitted to insure as being fifty-one years of age, though he was fifty-two years of age.
    It does not appear that he (the assured) intended to deceive. There was no motive for deception when his application was made to defendant for a policy.
    If the officers did not consult the record of rejections for sometime after insurance, they failed to prove that they had not notice to disprove the prima facie evidence of notice admitted. Later the medical examiners of the defendant having been notified of the rejection, no steps were taken to inform the creditor and cancel the policy, or to enable the holder of the policy to protect itself against loss.
    Held : That the defendant company is estopped as against the third person in good faith.
    It should, within, a reasonable time after it found out that the assured had not properly answered questions propounded, have informed the holder of the
    ■ policy. It was a duty of the company to give notice to the holder of the policy.
    The knowledge of the agents and officers of the corporation regarding business in their charge, is notice to the company; otherwise, save with its consent, a corporation would never be bound by notice of any sort.

      On Iti']iii$AiiiN(i.
    II. If an insurance company knows at tlie time it issues -a life policy that the answer of tlie insured that he had not .previously applied to another company for insurance and been declined, was not true, and still saw fit to favorably consider the application, it can not afterwards deny liability on the policy.
    2. If, at the time it issues the policy, the company does -not know of the untruthfulness of the answer of the insured, but subsequently acquires the knowledge and yet, thereafter, accepts payment of a premium due on the policy, this act constitutes evidence of an election on its part to continue the policy in force.
    3. If, after the policy has issued and aft’er two payments of premiums upon if, besides the initial one, have ’been made, knowledge of tlie fact of the false answer as to other insurance is brought home to the company, and it inquires into the same and learns from the other company the .grounds for its rejection of the applicant, and tlie insurer then, notwithstanding, permits nine months to elapse without exercising its right to declare the policy void, and this continues down to within a few days of the time when the fourth premium would be due. after payment of which the policy o'n this ground would become incontestable, and this condition of things ends only by the death of the insmed, the company, by its conduct, places itself in a position where it can not successfully impeach tlie policy for breach of the warranty-
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      Fenner, Henderson & Fenner and E. 1). Saunders for Plaintiff and Appellee.

      Dinhelspiel & Hart, (E. S. Rapado, of Counsel), for Defendant and Appellant.
   Watkixs, J.,

filed a dissenting opinion.

On tlie Rehearing the opinion of the court was delivered by Blav chard, J.

The opinion of the court was delivered by

Breaux, J.

This was an action upon a policy of life insurance foi $20,000 issued on the 30th day of January, 1893, by the Manhattan Life Insurance Company of New York upon the application of Charles II. Schaefer. The insured named himself as the beneficiary. The policy was assigned to the Union National Bank.

The agent of the company was advised of the fact, that the application was made for the benefit of the bank, and to send tlie policy to the bank immediately after its receipt. The bank paid all the premiums.

The premiums annually were $1,118.00. Three years’ premiums were paid.

Charles IT. Schaefer died on the seventh day of January, 189G, apparently in good health until a few minutes prior to his death.

The policy sets forth, that it was issued in consideration of the application, and the statements and covenants therein, and that if any statement made in the application be in any respect untrue, the policy was to be void, and all payments of premiums forfeited; save after three years it was to be incontestable for any misstatement in the application.

The application concluded: “Warranted that the above statements and answers are full, complete and true in every particular, and they are offered as a consideration for the insurance applied for.”

lie had, in 1S91, made application to the New York Life Insurance Company for a policy of life insurance on his life for $10,000. He was fifty-two years of 'age at the time, and applied for insurance at the rate of premium applicable to one fifty-one years of age and, substantially, to have his policy dated back for that purpose.

This application was not granted, and the policy applied for, was not issued. It is in evidence, that the laws of the State of New York do not prohibit the dating- back of a policy, and that the rules and charter of one of the large companies, at least, have no provisions to the contrary.

The defendant Manhattan Life Insurance Company contended, that a breach of warrnty had boon committed by the insured.

The evidence discloses, that the medical directors have a common agency to which the names of persons whose applications have been declined by the respective companies (including the defendant company), are communicated, and that the Medical Board of the New York Life Insurance Company communicated to the common agency the name of Charles Henry Schaefer, as a declined applicant for insurance in that company.

He was rejected, it was asserted, because of his request to have the policy dated back one year less than his age.

It also appers, that on the 1st of April, 1895, the resident physician of the Manhattan Life Insurance Company applied to the New York Life Insurance Company’s Medical Director, regarding the cause for which Charles Henry Schaefer was rejected in May, 1891, and that an answer was given informing' him of the cause.

The case was tried by a jury. The verdict was for plaintiff. From the verdict and the judgment of the court, defendant appealed.

The insured here knew, or it was incumbent upon him to know that he had applied for insurance in another company. lie had been examined for insurance by a physician of the company, and had signed an application in whiqh he had sought-, legitimately enough on his part, to be rated at less than his actual age; it may be, after all, that it would have been legal and binding if the company had chosen to allow the extraordinary request to lessen the amount of his premiums, by charging him, as related to premiums, with one year less than really was liis age, i. e.; by charging him premiums as if he had been fifty-one years of age, although he was fifty-two years of age. The nature of the request, and the refusal were such as to impress upon his memory that he had applied for insurance. Only a few years after, he chose to apply for insurance in another company. In his application he declared that he had never beeen rejected. We find it impossible to conclude, that this declaration was made in accordance with the facts, for in reality it was not.

It is equally as true, that he was bound under the terms of the contract to make only correct answers.

But it is contended by plaintiff’s counsel, that the proposition made by the insured regarding his age had no consequences; that the company to which he had applied (the New York Life Insurance Company) saw fit to decline the application; that he, the insured, had the' very best grounds to believe that he was absolutely without physical infirmity, and that the refusal to accede to his proposal, had nothing to do with the state of his health; that the insured acted in good faith, and that his memory should not be subjected to the stigma of his having spoken in falsehood.

We have no desire to stigmatize the meniory of the deceased.

He, it may be after all, had forgotten the statement contained in his application; it may be, that he had signed it without first having read it. The record does not disclose, that he could have had the least motive for any concealment growing out of the application which had been made by him to insure his life in 1891. He had been pronounced a first-class risk by the Medical Board representing the New York Life Insurance Company in 1891.

It is not for us to reform the contract and make it bend because of these just recited facts. The insured should not have signed the application at all with such a binding condition, in a matter not material, or should have signed only after having read it carefully, ancll after having satisfied himself that he could safely answer.

The parties made material a fact that would otherwise be immaterial.

Though there was no downright misrepresentation with the view of gaining an advantage, or to commit fraud, for the insured was ins all respects a safe risk, nonetheless, under the terms of the contract,, the statements should have been strictly and literally true.

Weil vs. New York Life Insurance Company, 47th Ann. 1405.

The second division of the case contains a question of estoppel growing out of the defendant’s knowledge of the insured’s prior application.

We grant, to the defendant, that there was originally a breach of the agreement. The plaintiff, in our judgment is not absolutely concluded by this breach. It may well challenge defendant’s right to have the contract declared void and to have "the amount paid by it fox-premiums forfeited. Plaintiff may, in our view, lightly hold it, defendant, estopped by its knowledge and silence from urging the breach of agreement.

There is a persuasive reason for concluding that through the common agency to which we have alluded in our statement of facts, defendant knew that the insured had made an application to another company prior to his application for one of its policies.

Silence, and the continued collection of pi-emiums after knowledge of this fact, was hardly equitable conduct toward plaintiff, who was not a party to the original act of insurance. Quietly collecting the premiums from an assignee, who was unquestionably in good faith and knew nothing of the untrue statement of the insured in his application for insurance, must, in our view,be considered more effective as an estoppel and waiver, than if such an issue were to arise between the parties to the contract.

Able counsel for the defendant earnestly controvert the position, that the defendant knew of the untruthful statement charged.

If we should grant that the knowledge of the common agency of the Companies in New York was not conclusive proof of notice to the defendant, there is other evidence upon the subject.

We have seen that on the first of April, 1895, the resident physician of the defendant company made special inquiry, touching the prior application of the insured, to which the Medical Director of the New York Life Insurance Company replied on the 3rd of April, of that year, giving the desired information. At least from that time there was a duty and a fitting occasion to speak. The officers of the company must have known prior to that time. They had the application of Mr. Schaefer made to them for insurance, in their possession. They had access to all informtion of the “common insurance agency” in New York, where registry of all rejected applications was kept. The presumption is, that the medical directors made reference to the agency to ascertain the facts of the case. The purpose of the agency was, to furnish such evidence, and the natural inference is, that the officers concerned had knowledge of the statement and of the preceding application by which it was contradicteed.

The applications are referred to the Medical Directors of the company, and they in turn have access to the Central Agency of all the companies. The evidence gives rise to a prima facie presumption of knowledge on the subject, sufficient to shift the burden of proof. The defendant company made no attempt to prove by the testimony of any of its officers, that they did not know of the first application.

“The .capacity of the party to give evidence may affect the burden of proof.” Best on Evidence, par. 274. The same principle regarding the propriety of proof shifting after prima facie evidence was applied in Peetz, Widow, vs. Railroad Co., 42 Ann., 546; Day vs. Railway Co., 35th Ann., 694. This, in our view, brings knowledge of the fact to the company. From that standpoint the defendant is es-topped from insisting upon a forfeiture of the premium and the avoidance of the policy. Similar issues regarding estoppel were presented in Insurance Co. vs. Nicholls, 24 S. W., 911, in which the plea of estoppel was sustained and the policy was declared not forfeited.

In that case, the court instructed the jury, in the charge: if the defendant had notice that any part of the answer was false, or that it knew that application had been made to defendant itself at a time previous, the defendant was estopped from setting up misrepresentation of the assured as a defense. On appeal, the charge was announced legal.

The defendant contends that it is not bound by the knowledge of those to whom knowledge is traced in this ease; that a corporation of itself eaif not have knowledge. It is, however, bound by the knowledge of its officers and agents who have charge of the particular business in regard to which knowledge is alleged.

There was a delay of nine months in the case here for decision between the date that the medical examiner of the defendant company received direct information from the Few York Life Insurance Company of the first application, and the date of the death of the insured. During that time, it was, we feel confident, the duty of the defendant company to inform the assignee of the policy (the plaintiff) of the misstatement now complained of by the defendant. Having failed in this duty, we find it convincing, that the policy in the hands cf a third party as holder is not void. The defendant knew that plaintiff was the assignee from the first, and had paid all the premiums. It does seem to us, that the defendant, in justice to one of the holders of its policies, was bound to inform plaintiff of the breach of the contract, and that it should have raised the point within a reasonable time. There is no evidence before the court of the course usually, pursued by the defendant company in such cases.

There is evidence of the manner of proceeding of another company, (like the defendant, one of the most prominent companies) in such cases. It invariably sets up inquiry with the view of rectifying or annulling the contract. We have no reason to conclude from the evidence, that the defendant has heretofore acted differently.

Had the plaintiff been timely informed, it might have avoided risk of loss or questions of the legality of the contract, by taking1 out other insurance. It put faith in its policy, subject to question because of a breach of which tlio insurer had knowledge. The least intimation (of the breach) to plaintiff would have been enough to prevent recovery. In its absence we must determine that defendant is bound.

The contract of insurance in this case stipulated, that it could not be changed or waived, save by written agreement. There was no intention, as we construe, iu inserting this provision to free it absolutely and forever from all the possible effects of an estoppel. There was no attempt made to alter the contract in any respect, or to change or waive any of its terms and conditions. The whole contract remains unchanged, but the view is taken by us, that the policy having matured by the death of the insured, and defendant not having imparted the knowledge to the plaintiff, it should have imparted within the long period of time that elapsed, the attitude of the defendant toward the holder of the policy is one which we think operates as an estoppel. The stipulation not to change or waive the terms of the policy as written therein, did not have the force and effect of forever freeing the defendant. from all possibility thereafter of being estopped.

It could, under the rules applying to estoppel, waive the waiver of the assurer, or at any rate, waive the possibility of urging -the point against a policy holder who was a third person.

We have arrived at the conclusion, that defendant has not sustained its defense, that, the verdict was correct, and that the judgment, should .be affirmed.

It is affirmed.

OpinioN ON Rehearing.

Blanchard, J.

Charles H. Schaefer owed the plaintiff bank a sum ‘exceeding thirty thousand dollars. To protect the bank ho assigned to it two policies of insurance on his life, one in the New York Life Insurance Company for $10,000, the other in the Manhattan Life Insurance Company for $20,000.

This suit deals with the latter.

This policy was taken out.in January, 1893. Schaefer was-then between fifty-three and fifty-four years of a¿e. At that time he carried policies on his life in four other companies.

The policy in defendant company was applied for at the instance of the plaintiff bank. The application for the insurance, made out by Schaefer, directed the policy to be made payable to “S. Chalaron, Agent”, .and stated the latter’s relationship to the insured to be that of creditor. Chalaron was the agent of the plaintiff bank, who was the creditor of Schaefer.

But when the policy came to he made out, it was not written payable to S. Chalaron, Agent, as Schaefer had directed, but was made payable to Schaefer himself. This change was effected at the instance of the company, it being well understood that the purpose Schaefer had in taking out the insurance could be as well subserved by the assignment of the policy to the bank.

It was the bank that paid the premium, $1118.00, when the policy was delivered, and it was the bank that paid the two remaining premiums of $1118.00 each, which accrued prior to the death of Schaefer.

The insurance company, therefore, had full knowledge from the beginning that -it was the bank which was taking out the insurance upon the life of Schaefer for its own protection as against the large indebtedness he owed that institution.

The policy was forthwith, after its issue, assigned to the bank, and due notice of assignment transmitted to defendant company.

Schaefer died on January 7, 1896, just twenty-three days prior to the third anniversary of the elate of the policy. If this third anniversary had been reached -before his death the policy would, by its terms, have become incontestable as to the grounds upon which the company’s defense to this action rests.

Following the death of Schaefer demand of payment of the policy was, after proof of death, made by the bank, and declined by the company on the ground that the insured had made mis-statements in his application for insurance, constituting a breach of warranty and an avoidance of the policy.

This suit followed.

The defense -rests on Schaefer’s response to two questions. Among the printed questions he was required to answer in filling out the application for insurance was the following: "Have you ever applied to any company for insurance on your life without receiving a policy of the exact kind and amount applied for? If so, state the name of each company.”

He filled the blank with the simple response, “No.”

Then when he came to fill out the blanks in the printed “Medical Examiner’s Report,’* in response to the 68th question: “Have you ever been declined or postponed by any company? State name of company” — he answered “No.”

It appears that these answers were not true, for on the 6th of May, 1891, less than two years prior, an application by him for insurance in the New York Life Insurance Company had been declined.

The application for the present insurance warranted the statements and answers made therein to be full, complete and true in every particular, but stipulated that “they are offered as a consideration for the insurance applied for”; and the policy itself recites that it is issued in consideration of the statements and covenants made in the application, which are constituted part of the contract, and which if untrue avoids the policy and forfeits to the company all payments made upon it.

Upon this state of facts, if this were all there was in the case, if Schaefer had died without the untruthfulness of his answer® as above having' seasonably come to the knowledge of the insurer, and after or about the time of his death the company had discovered the same, and set up the breach of warranty as against the demand for payment of the policy, there would be little or no doubt of the legal sufficiency of the defense..

But there was a sequel and from it appears another. aspect of ,the case and one not so favorable to defendant.

If the insurance company knew at the time it issued the policy that Schaefer had previously applied, to another company for insurance on his life and had been declined — in other words, if it knew that his answers in this regard were not true and still saw fit to favorably consider his application, the administration of justice would interfere to prevent denial of liability on the policy which followed.

The warranty stipulation as to no declination by any other company was one made or exacted for the benefit of the insurer and could be waived by the latter, and would, of course, be held to have been waived, if, with knowledge of the untrue answer, it had nevertheless executed the contract.

Further, if at the time it issued the policy the company did not have knowledge of the untruthfulness of the answer of the insured, but subsequently' acquired this knowledge and yet, thereafter, accepted payment of a premium due on the policy, this act could not be considered otherwise than, as an election on its part to continue the policy in force, and it would not be heard to set up its avoidance because of this breach of warranty.

Phoenix Life Ins. Co. vs. Reddin, 120 U. S., 196.

And, still further, if after the policy had issued and after two payments of premiums upon it, besides the. initial ’ one, had been made, knowledge of the fact had been brought home to the company that the insured had formerly applied to another company for insurance ■ which had been denied, and it (the present insurer), had inquired into this and learned from the other company the grounds upon which it had declined' the risk upon the life of the insured, and then had, notwithstanding, permitted a long period of time (nine months) to elapse without exercising its right to declare the policy void, and this had been continued down to within a few days (twenty-three) of the time when the fourth premium would be due, after payment of which the policy on this ground would become incontestable,' and this condition of things had ended only by the death of the insured, the company would by its conduct be placing itself in a position where it could not successfully impeach the policy for breach of the warranty.

Especially is this true, where, to the knowledge of the insurer, another other than the insured had taken out the insurance on the latter’s life as protection against a large indebtedness he owed the other.

And that is this ease. •

At the time when, in May, 1891/Schaefer applied to the New York Life Insurance Company for the policy which was declined, that company and defendant company were,, through their Medical Boards, members of, or subscribers to, a common agency maintained in the city of New York by the principal life insurance companies located there.

The purpose of this agency, or bureau, was to make, keep and preserve a record of the names of those who had applied for insurance in any of the companies subscribing to the agency and had teen declined. It was for the mutual benefit of the companies. Each was to furnish the agency with the names of rejected applicants, and the records thus kept were always accessible to the companies having membership in the agency.

Accordingly, when the New York Life declined Schaefer’s application, that company reported his name to the agency and it went on the list of rejected applicants. It was there when he made his application to defendant company, and the knowledge of his former rejection was, therefore, easily accessible to the latter.

It is true there is lack of proof that the company had availed itself of the means thus at hand to ascertain at the time whether Schaefer spoke the truth or not when he answered he had never applied and been rejected for insurance. But it does not strengthen the company’s case that it did not so avail itself, if it be true that it did not, and whether it did or not was peculiarly within its knowledge, and yet it made no attempt to show the facts by calling any of its officials as witnesses.

Nor does it appear from the evidence that at the time when the-premiums fell due and were paid the company had yet availed itself of the means at hand to discover the true facts.

But it does appear that on the 1st of April, 1895, more than nine months before Schaefer died, the resident physician of defendant company addressed a communication to the New York Life Ins. Co., or to its medical director, asking why that company had rejected Schaefer’s application for insurance made in May, 1891, and that two •days later the medical director had replied, giving the desired information.

So that it is shown defendant company had knowledge of the fact of rejection prior to the 1st of April, 1895. How much prior was best known to defendant, but no light did it shed upon the subject by calling- any of its employees to the stand. Nor did it produce the let--ter of the medical director of the New York Life Ins. Co., giving- the reason for the rejection, and the record does not, from any other source, disclose the reason. Enough is shown, however, to impress us with the belief that Schaefer was not rejected because of an adverse condition of health disclosed by the examination then made of him.

On the contrary, the medical examiners of the New York Life reported him as a first-class risk.

In the application he then made he reported his age as 52, but wanted the policy issued as of age 51 years, and asked that it be dated back accordingly.- It is quite likely, at least we are left to surmise so, that the company was unwilling to do this and, hence, declined the application.

If this were the case, if it .were reported to defendant company that Schaefer had been rejected because of his peculiar request as to the age at which he desired to be rated, and not because of ill health, or unfavorable symptoms likely to affect his health, it might well be that defendant saw no reason for exercising its right to declare the policy it had issued on the life of Schaefer void by reason of his false answer, and concluded to stand by the contract.

It did stand by it 'for more than nine months thereafter, and repudiated it only when Schaefer died, just within the time after lapse of which the policy would have become incontestable.

After the discovery of the breach of the warranty it was the right of the company to speak in avoidance of the policy, and we must hold it was likewise its duty to speak within a reasonable time thereafter.

It is not the case of acquiescence by mere silence and inaction. After the discovery of the fact of other insurance applied for and declined — how long after we know not, though defendant was in a position to have told us — an investigation was set on foot by the company to ascertain the cause of rejection. This was action by the defendant with reference to the breach of warranty, and we must pre-surne that the result of the investigation was so satisfactory that it concluded to let the contract remain intact, else it would have exercised its right to repudiate it arid retain the-payments made upon the policy, as the terms of the latter permitted.

The company could have insisted upon the avoidance of the policy, or could have waived it, as it might deem most to its interest. But it must xnake its election to do the one or the other within a reasonable time, having due regard to the rights of others.

Here, had it exercised its right to cancel the policy, the plaintiff bank, having large interests at stake, could have protected itself by taking out other insurance upon the life of Schaefer, for it is in evidence that he remained a good insurable risk, so far as his general health was concerned, down to the time of his death.

Even silence and inaction are, under some circumstances, the means of showing an assent that creates an obligation. C. O., 1811.

Omission to repudiate-within a reasonable time is evidence, and may be conclusive evidence, of an election to affirm the contract.

Pollock on Contracts, p. 50738 Fed. Rep., 806; 83 Ill., 455; 59 Tex., 512.

Our review of the case has not led to a conclusion different from that first reached, and, accordingly, the judgment appealed from is affirmed.

MoNROE, J., takes no part in this decision.

Watkins, J., adheres to his dissenting opinion.


author: Breaux, J.

text:
    No. 12,937.
    Succession of Bernard A. Kernan.
    Syllabus.
    Names cannot change substance.
    In tbis State, tbe testamentary power must be exerted in subordination to the titles of ownership prescribed by the Code. Donations inter vivos or mortis omisa, substitutions, fidei commissa and conditions, contrary to law, are prohibited by the Civil Code.
    where the title created by the will is a teenure not recognized by our Code, if the court were to change it and convert it into a valid title, it would be making a new will.

      APPEAL from the Civil District Court for the Parish of Orleans. King, J.

    IF. S. Parkerson and Bernard Bruenn for Legal Heirs, Plaintiffs and Appellees.

      James David Ooleman for Archbishop Placidus L. Ohapelle, Defendant and Appellant.

      Frank McGloin for Executor, Appellant.
   The opinion of the court was delivered by

Breaux, J.

This appeal is by the executors of the deceased Bernard A. Kernan, from the judgment in favor of.the legal heirs of the deceased annulling the disposition of his will in favor of the Archbishop of the Diocese of Louisiana and his successors, of certain property, the revenues of which were directed by the testator to the founding and support of an asylum for the poor.

The legacy assailed is:

“Furthermore, in like manner and for the purposes hereinafter mentioned and described, I give, devise and bequeath to His Grace, Archbishop Janssens, now of this the diocese of Louisiana, and to His Grace’s successors, in fee and forever, all my right and interest in and to the following properties in this city, and long known respectively as old numbers 43, 56, 58, 60, 153, and 243 N. Rampart street; the three properties likewise known as old numbers 119, 122 and 124 Royal street, the three double cottages likewise known as old numbers 149, 151, 169 and 169%, 171 and 171% Hospital street (the latter lately known as the Bayou Road), the two double-story property known as old number 268 Dumaine street, the two-story and attic property known as old number 74 St. Peter street, and the three properties likewise known as old numbers 136, 258 and 262 Bourbon street, all of which last mentioned properties, I, as aforesaid, give, devise and bequeath in fee and forever to His Grace, the said Archbishop Janssens, and to his successors, upon condition that out of the revenues or rents thereof an asylum or home for the poor of both sexes shall be founded, endowed and maintained similar so far as possible, to that of St. Michael’s, in the city of Rome, Italy”.

The petition of the heirs bases their attack on the will on the grounds; that it sought to create a fiiei commissum; that the disposition proposed a prohibited substitution changing the rule of inheritance -established by our law; that it instituted the Archbishop individually and his successors in office in their individual capacities as trustees to administer the property; that it vested iii them no legal title; that it sought to inroduce a tenure unknown to our law and placed the property out of commerce, and, in all other respects, the petition charged the disposition was against public policy, within the prohibitions of our Code and hence void and of no effect. Civil Code, Article 1520. The answer denies that the disposition presents a fidei commissum or substitution; avers its validity; states that it is for the benefit of the poor of the diocese, is in favor of the Archbishop or of the corporation, the Roman Catholic Church of the diocese of New Orleans, and, in either view, is valid. Archbishop Janssens died after this suit was brought and his successor, the present Archbishop Pla-cidus, Louis Ohappelle, was introduced as defendant, and takes this appeal.

It has become elementary with us that the testamentary power must be exerted in subordination to the titles of ownership prescribed by the Code. Our law will not tolerate the introduction of tenures not recognized by the Code, and in the Code full ownership with its modification receives explicit determination. Articles 488, 533, et seql Succession of Franklin, Ith Ann., p. 395; Succession of McCann, 48th Ann., 145; State of Louisiana, Etc. vs. Executors of McDonogh, 8th Ann., 171. The Code prohibits donations inter vivos, or mortis causa, substitutions, fid&i commissa, and conditions contrary to law and morals. In the will before us there is the designation of the Archbishop of the diocese of Louisiana and his successors in office forever as the legatees, on the condition the revenues of the property shall forever be applied to the benefit of the institution designed by the testator. The argument insists we are to treat the legacies as in favor of the corporation known as the 'Society of the Roman Catholic Church of the diocese of New Orleans, of which the Archbishop is the representative. Whether we hold the church or the Archbishop to be the legatees, we are confronted with the difficulty arising from the title the will seeks to create. The will conveys no ownership. The title, such as it is, is one of mere administration. Whether held by the church or the Archbishops, the property is to be forever inalienable. It requires no argument to demonstrate that no such title has any place in our Code. The will, in our view, would be obnoxious to our law in seeking- to introduce an impossible and illegal tenure. Succession of Franklin, 7th Ann., 416; Harper vs. Stansboroug-h, 2nd Ann., 380; Succession of McCann, 48th Ann., 156. To discriminate this case from that of Franklin, a will in favor of trustees for the benefit of an educational institution, our attention is directed to the fact that the .word “trustee” does not occur in the will. But names cannot change substance. The only title the will proposes is that for the administration of the property and the application of its revenues to the purpose of the testator.

In our view there is no escape from the conclusion that because of the destination of the property and its revenues forever to the maintenance of the charitable institution we have the trust estate and the title only for the purposes of that trust vested in the legatees. It is in our view, precisely such a title as was condemned in the Franklin case. The argument claims that the destination of property and revenues for the purpose of the testator is to be treated as a mere recommendation not at all affecting the legacy. In the cases cited in this connection, Orphan Society vs. New Orleans, 12th Ann., 66; Partee vs. Hill, 12th Ann., 767, there was a legal title conveyed by the will. The court treated the provisions as to the use or application of the revenues as advisory or suggestive. Here the condition on which the property is given is of the nature of the title. The property is given for the purpose named by the testator and for that purpose alone is the title conveyed. The argument further insists that as the will imports no prohibited substitution we should apply the article of the Code that regards illegal conditions as not written. Civil Code, Article 1519. But this principle has its limitation. There must be a title in the legatee, to which the illegal conditions are sought to be attached. But where the illegal conditions are of the essence of the title, it cannot be made good by disregarding the conditions. The view pressed on us in this connection was urged and discarded in the Franklin case. Where the words, said the court, are sufficient to vest the legal title in the legatee, and the intention to create such a title is manifest, in furtherance of that intention the law will presume the illegal conditions as inadvertant and reputes them not written, but where the title created by the will is a tenure not recognized by our Code, to change it and convert it into a valid title, is to make a new will. Succession of Franklin, 7th Ann., 414. If in this case we could perceive there was any intention on the part of the testator to vest ownership in the sense of the law,, in the Archbishop, or the church, our decree would give to one or the other the property in absolute ownership and repute the conditions not written. To do that, would be, in our view, to make the will and at the same time defeat the testator’s purpose.

Judgment affirmed.

The opinion in this case was prepared by the late Justice Miller, and having been considered by the court, subsequently, was adopted as the judgment of the court.

Rehearing refused.