text:
    No. 9972.
    H. & B. Beer et al. vs. David Haas et als.
    Property adjudicated at a sheriff’s sale for taxes to a mortgage creditor^ and subsequently retroceded with.the formal agreement that matters will stand in the condition in which they were previous to the adjudication, can be proceeded, against via ezecutiva by the .creditor to foreclose the mortgage, as though the tax sale and retrooession had never taken place.
    Such creditor has the right to surrender possession of the property given him to extinguish the debt, by application of the fruits, and to have the property seized and sold to pay his claim, when he has not expressly abandoned that right or bound himself to retain possession.

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

      R. O. Miller for Plaintiff and Appellant; G. A. Breaux and R. O. Miller for Citizens’ Bank, Tntervenor and Appellant:
    The renunciation by the creditor of the legal remedies to compel payment of bis debt is not presumed, and never implied unless the implication is clearly evident.
    The antichresis gives to the creditor the right to reap the revenues of the properly of the debtor, for the payment of the debt, but the creditor, unless he has renounced the right, can always surrender the property and exercise his rights as a creditor; so in this case, if the act between tbe widow and heirs is deemed an antichresis, the hank had the right to give up the property and exercise its right of seizure and of sale. Civil Code, Art. 3X76, 3178.

      G. E. Schmidt for Defendant and Appellee; White & Sawnders and E. O. Zacharie for Heirs of Zacharie, Appellees :
    Acts of antichresis are to he interpreted by the courts most liberally in favor of the debtor, who will protect him from the rapacity of his creditor. 11 Peters, 390 ; 19 Howard, 589. This is the rule of the common law in regard to the contract of vivn/m vadium, or Welsh mortgage, which corresponds to the antechresis of the civil law. Bouvier’s Law Diet, verba Vivum Vadium and Welsh Mortgage; 1 Powell on Mortgages, 4; 373 Ann. 1079 ; 2 Powell, 1079; Merlin Question du droit “ Faculté dó Racbat.”
    The creditor who has reoeived the immovable of his debtor in antichresis, may, at any time, abandon che pledge, and resort to the remedy on his debt, unless he has renounced the right of abandonment. R. C. C. 3178. The renunciation of this right may he express or tacit, and the latter may he gathered from the intention of the parties as shown by the whole act. Laurent XXVIII and notes, p. 539, and other authorities there cited ; Zacharie (Aubry and Rau’s Edit.) tom 3. p. 525
   The opinion of tlie Court was delivered by

Bermudez, C. J.

This is a suit to compel an adjudicatee to comply with his bid on. certain real estate.

The defence is that the title tendered is not such as the defendant is bound to accept.

Tbe appeal is taken by the plaintiffs from a judgment against them.

The material facts from which the litigation arises, are the following:

The Citizens’ Bank was a creditor of J. W. Zacharie for a large amount, secured by mortgage on valuable property in this city.

After tbe death of Zacharie, the property involved in this controversy and other property was offered for sale by the sheriff, under an execution, for the payment of back taxes.

At that sale, which occurred in 1874, the bank became the adjudicatee. : ■ .

' In Juñe, 1875, the widow and heirs of Zacharie and .the bank executed an act whereby the claim of the bank was liquidated and the property retroceded, possession being retained by the bank with a view to the extinguishment of the debt by application thereto of the rents and revenues.

It was stipulated, ex industria, that the object of the agreement was to place matters in the condition in which they stood before the sheriff’s sale for taxes; but that the widow and heirs of Zacharie would, under no circumstance, be liable for the debt due the bank.

In the course of time, finding that her condition had not improved, and that it was her interest to foreclose her mortgage, the bank, in 1876, instituted proceedings to that end, against Widow J. W. Zacharie executrix and possessor.

Under the writ issued, the property was seized, advertised, and in August, 1876, adjudicated for $54,000 to the bank, who retained the amount of adjudication, which was inferior to her claim, and she paid the costs and charges.

In 1881 the bank sold to the plaintiff part of the property thus adjudicated, aud in May, 1884, the plaintiff caused it to be offered at public auction, when it was adjudicated to the defendant for $20,000.

The validity of the title tendered having been questioned by the defendant, who declined to comply, the bank intervened, joining the plaintiffs, to affirm the title made them by her. On the other hand, the widow and heirs of Zachaiie, brought in by the plaintiffs and by the bank, make common cause with the defendant.

The only question to be determined is simply:

Whether or not the title resided in the succession of J. W. Zacharie at the foreclosure of the mortgage.

The argument cannot be successfully urged that the bank cannot hold the affirmative, as she has undertaken to reconvey to the widow and heirs of Zacharie, the property adjudicated to her at the sheriff’s sale for taxes, and as by the retrocession, the title passed from her to them, and was at the date of the proceedings, in them and not in the Succession of Zacharie.

The object of the act, to which allusion has already been made, was to adjust with the widow and heirs, the claiffi of the bank, to avoid the tax sale formally, and, as said, to place matters and persona in the condition in which they stood before the sheriff’s tax sale.

The retrocession was designed for no other purpose than to show an express relinquishment of any title by the bank to the property in favor of the succession, represented them by the widow and heirs, Who, at Zá'charie’s death, had become the joint owners of the property left by him and who had undertaken to champion its rights.*

What title they acquired by the Act of 1875 was merely that which they held at Zacharie’s death in 1870.

At that time the bank could well have issued executory proceedings against the succession of Zacharie (Bank vs. Buisson, 7 R. 506), and as the title was in it at the date of the seizure and sale, to foreclose, it is apparent that the bank had a right to proceed against the succession represented by the executrix. Indeed, she had no other alternative. R. C. C. 3181.

In such a case, it was unnecessary to make any other parties.

The objection that, by the agreement of 1875, a contract of antichresis was entered into, and that the bank had no right to surrender the property which formed the object of it, has no foundation.

The bank had a right to relinquish or abandon possession at any time, as she had not bound herself to retain it. R. C. C. 3178.

Viewing the agreement otherwise than as an antichresis, we do not find in its tenor, any obligation assumed by the bank to retain possession, until the debt be finally paid. Had such been the intention of the parties, they surely would have unequivocally expressed it.

The bank, besides, had hypothecary rights on the property, the exercise of which had not been, in any manner, suspended or affected by the agreement in question.

We, therefore, conclude that the title offered is such as the purchaser was bound to accept.

It is, therefore, ordered and decreed that the judgment appealed from be reversed, and that there be now judgment in favor of the plaintiffs and the Citizens’ Bank, intervenor, rejecting the claim of the widow and heirs of J. W. Zaeharie, declaring that the property described in the petition belongs to the defendant, David Haas, and condemning him to pay to the plaintiff the price of adjudication: Twenty thousand dollars ($20,000) and interest, with vendor’s lien and privilege aud special mortgage on the property and according to the terms and conditions of the adjudications, as specified ip said petition, and that the widow and heirs of Zaeharie and the' defendant, Haas, pay costs in both courts.

Rehearing refused.


source: Caselaw Access Project

author: Tocpfi, J.

license: Public Domain

text:
    No. 10,008.
    Henry E. Williams vs. Pullman Palace Car Company et als.
    In dealing with matters of litigation growing out of the construction of railway law, in connection with railway accidents, the Supreme Court of Louisiana will endeavor to place its rulings in line and in harmony with the adjudications of the Supreme Court of the United States, and of the courts of last resort of the States of the American Union, in all cases in which they do not conflict with the special and exceptional system of laws prevailing in Louisiana.
    In cases involving the responsibility of a common carrier, such as a raihtay company, for injuries sustained by one of its passengers, the porter, and other employees of a Pullman Car Company, forming part of the railway company’s train, will bo considered as the servants and employees of the railway company.
    Their negligence, or the negligence of either of them, as to any matters involving the safety and security of passengers, while being conveyed, is the negligence of the railroad company. Pennsylvania Company vs. Roy, 102 U. S. 4515 Thorpe vs. U. Y. & H. R. R. Co.,. 76 U. Y. 402.
    A railway company is liable in damages for a wanton and malicious assault by one of its servants on a passenger. 57 Maine, 202, Goddard’s case.
    A railway company is responsible for injuries received by one of its passengers at the hands of a porter of a sleeping car, forming part of the railway company’s train, if it appears that said passenger was not a trespasser on the sleeping car.
    APPEAL from tlie Civil District Court for the Parish of Orleans. Tissot, J.
    . W. 8. Benedict and Bead & Gooddle for Plaintiff and Appellant:
    Quoted tlie following authorities, viz . Thorpe vs. N. Y. C. R. E. Co. 76 N. Y. 402; Caso of Goddard, 57 Maine; Baltimore City Railroad Company vs. Kemp, 61 Maryland 619 $ Railroad Company vs, Renney, 10 Wisconsin, 388; 4 Gray, Mass. 365; Penn. Railroad vs. Van Dives, 42 Penn. State Rep, 365; Weed vs- Panama, 17 N. Y. 362; Railroad Company vs. Derby, 14 How. U. S. 468; Pittsburg Railroad Company vs. Hinds, 53 Penn. State. 512; Woods’ Treaties on Railway Law, Vol. 2, p. 1179. ■ 3 Woods’ Railway Law, Sec. 366, p. 1422, the rule is stated to be thatthe railway company is liable for the acts of the servant of the sleeping car company, whose car is attached to its train, and it cannot shield itself from liability upon any ground, especially in cases where the whole train is under the management of the railway company. Landeaux vs. Bell, 5. Louisiana, 434; Chamberlain vs. Chandler, 3Mason, U. S. Circuit Court Reports.

      Percy Boberts and Fcvrrar é Kruttselmitt for Defendant and Appellee.
   The opinion of the Court was delivered by

Tocpfi, J.

This appeal presents plaintiff’s claim for damages against the Louisville, New Orleans and Texas Railway Company for personal injuries received by Mm at the hands of the porter of the Pullman Car Company, on the 23d of November, 1885, while he was a passenger of the railway company between Zachary station and Baton Rouge.

His demand was against both companies in solido, but on motion separate trials were granted, resulting in a verdict in Ms favor against the Pullman Company, and in the other case in a verdict in favor of the railway company.

On appeal to this Court, the judgment in his favor and against the Pullman Company was reversed and his demand rejected^ His present appeal is from the judgment below which rejected his demand against the railway company.

The pleadipgs and the evidence are the same in both cases, and as they are stated with precision and at. length in our opinion in the first case, they need not be repeated here. (See Henry E. Williams vs. Pullman Palace Car Company et als., No. 10,008).

It is in proof, and it is not disputed, that plaintiff had paid his fare, as a passenger on the defendant’s train, and that he was as such entitled to all the privileges and to the protection which a common carrier or transporter owes to its passengers.

Defendant’s main contention is that plaintiff was a trespasser in the Pullman car, and that he thereby forfeited his right to protection from the railway company, according to the terms of his contract of' transportation.

Under our understanding of the issues presented by the pleadings, plaintiff’s right of recovery against the railway company hinges upon the proper construction of the two following questions :

1. Can the railway company be held liable for the acts of an employee of the Pullman car company under any circumstances?

2. Was plaintiff a trespasser on the Pullman car when he was struck by the porter, or was he there entitled to the full protection of the railway company as one of its passengers ?

I.

An extended review of decisions of American courts has brought to our attention several adjudications which hold the affirmative of the first question which we are called to discuss in this case.

In one of those decisions the following principle is announced:

“Passengers upon a railroad, taking a drawing-room car, have a right to assume that they are there under a contract with the railroad corporation, and that the servants in charge of the car are its servants, for whose acts in the discharge of their duty it is liable.” 76 N. Y. Reports, Thorpe vs. N. Y. & H. R. R. R. Co.

The substantial facts of that case were: that a passenger on one of the defendant’s trains, finding all the seats occupied in the ordinary or day. coaches, walked into a drawing-room car, attached to, and forming part of, the train, and took a seat therein. When called upon by the porter to pay the extra charge for a seat in that car, he refused to pay the sum demanded for the reason that he could find no seat elsewhere; whereupon the porter attempted to eject him from the car, and for this assault he brought a suit for damages. On appeal from a judgment in his favor and against the railway company, the Court of Appeals of New York recognized his cause of action- and enforced the liability of the railway company for the acts of the porter or employee of the drawing-room car company. Among other things the Court said :

“ The general principle is well settled, that to make one person responsible for the negligent or tortious act- of another, the relation of principal and agent, or master and servant, must be shown to have existed at the time, and in respect- to the transaction between the wrong-doer and the person sought to be charged. The defendant relies upon the absence of this relation between the porter and the company as conclusive against its liability for his acts. But we are of opinion that this defense is not available to the defendant, or rather that the persons in charge of the drawing-room car are to be regarded and treated, in respect of their dealings with passengers, as the servants of the defendant, and that the defendant is responsible for their acts to the same extent as if they were directly employed by the company,”

Sanctioning the same rule, the Supreme Court of the United States enforced the liability of a- railway company for damages received by one of its passengers while he occupied a seat in a Pullman company car attached to the defendant’s train. The accident had been caused by the falling on the head of the passenger of the upper berth of the sleeping car, and was due to the unsafe condition of the brace or arm which supported the upper berth, and which was afterwards found to be broken. Pennsylvania Company vs. Roy, 102 U. S. 451.

In dealing with the question which now concerns us, the Court said':

“ The undertaking of the railroad company was to carry the defenfendant in error over its line in consideration of a certain sum, if he elected to ride in what is known as a first-class passenger car; with the privilege, nevertheless, expressly given in its published notices, of riding in a sleeping car, constituting a part of the carrier’s tram, for an additional sum paid to the company owning such car.
“As between the parties now before us, it is not material that the sleeping car in question was owned by the Pullman Palace Car Company, or that such company provided at its own expense a conductor and porter for such car, to whom was committed-the immediate control of its interior- arrangements. The duty of the railroad company was to convey the passenger over its line. In performing that duty, it could not consistently with the law and the obligation arising out of the nature of its business, use cars or vehicles whose inadequacy or insufficiency, for safe convejanee, was discoverable upon the' most' careful and thorough examination. * * * For the purposes of the contract under which the railroad company undertook to carry Roy over its line, and, in view of its obligation to use only cars that were' adequate for safe conveyance, the sleeping car company, its conductor and porter, were, in law, the servants and employees of the railroad compemy. (Italics are ours.) Their negligence, or the negligence of either of them, as to any matters involving the s'afety or security of passengers while being conveyed, was the negligence of the railroad company.”

In a case predicated on similar facts the Supreme Court of Ohio-applied the same rule. Columbus R. R. Co. vs. Walrath, 38 Ohio St., 461.

Commenting on the preceding, and otliei;, adjudications, Wood, in his work on Railway Law, has formulated the rule as follows:

“ The practice of running trains controlled by two separate and! distinct corporations has become quite common in this country, and as a result, questions as to the relative liability of these corporations will be likely often to arise.”

It has been held in several cases that when a passenger has purchased a ticket of a parlor-car company, entitling him to ride in its car, and also a passage ticket of-the railway company, the railway company is to be regarded as liable for the negligence of the palace car company; and that its servants are to be treated as the servants of the railway company in everything that regards the safety and security of the passenger. Wood’s Railway Law, p. 1442, Sec. 366.

Believing that in a question of such vast importance, on matters of litigation likely to arise in all parts of the American Union, this Court should seek to place its rulings and jurisprudence in line and in harmony with those of the Supreme Court of the United States and of the courts of last resort of our sister States, wherever those decisions do-not militate against the principles of our special and exceptional system of laws, we deem it our duty, without hesitation, to adopt the conclusions which so clearly flow from the highly respectable authorities to which we have just referred, and from which we have thought it proper and useful to make the foregoing copious quotations.

Applied to this case, in which it appears that the Pullman car was attached to the defendant’s train, under the same circumstances, rules and regulations, and for the same purposes as shown in the cases hereinabove mentioned, the rule of law thus sanctioned leads to the legal conclusion that for the purposes of this contention, the por.te'r of the sleeping car, by whom Williams was stricken down and injured, must be treated as being at the time a servant or employe of the defendant company, and as such entrusted with the duty of contributing in the performance of his legitimate duties, to the safety and security of the passenger which the railway company had undertaken to carry safely over its line.

Hence it follows that the railway company must be held liable for injuries sustained by one of its passengers through the negligence or fault or other acts of the porter in question. And, under well established jurisprudence, it is equally clear and logical that such liability extends to and embraces injuries inflicted on the passenger by means of a willful and malicious assault by a railroad employe on the passenger. ■

That responsibility is the subject of a very able and masterly discussion by the Supreme Judicial Court of Maine in the case of Goddard, 57 Maine, p. 202, in which a passenger was allowed exemplary, as well as compensatory, damages for gross insults heaped upon him by a brakesman on the train on which he was then travelling. In that opinion, from which we made copious extracts in our previous decision, (No. 10,008), the Court enforced the rule that “a common carrier of passengers is responsible for the willful misconduct of his servant toward a passenger.”

“A passenger who is assaulted and grossly insulted.in a railway car by a brakeman employed on the train, has a remedy therefor against the company.”

In Pennsylvania R. R. Co. vs. Vandiver, 42 Pa. St., 365, the railway company was held liable for injuries inflicted on a passenger by a violent ejectment from the train.

A like responsibility was decreed against' the railroad company for injuries sustained by a lady passenger in a general fight between drunken passengers in the coach in which she occupied a seat, on the ground that the conductor had not used the proper means to quell the disturbance. Pittsburg, Ft. W. and C. R. R. Co. vs. Hinds, 53 Pa. St. 512.

Our own jurisprudence has sustained an action by a lady passenger against the owners of a vessel for insulting and abusive language used to her and about her by an employe of the common carrier. The principle is thus summarized in -that opiniou : The master of a vessel is liable for the indecent and inhuman conduct of himself and of his crew,, excited by him towards a passenger.”

“Owners of vessels carrying passengers for money, are subject to tlie same responsibility for a breach of duty by their officers to the passengers, as they would be in regard to merchandise committed to their care.” Keene vs. Lizardi et als., 5 La., 431.

We therefore conclude that the case is with plaintiff unless it should appear that he was a trespasser on the Pullmau car when the incident occurred resulting in his injuries.

II.

And this brings us to the consideration of the second question involved in the controversy. Under the result of our examination of the evidence as announced in our previous .opinion, this question offers no difficulty in the present case.

Wo said on that subject: “We do not lose sight of the fact that plaintiff was not a trespasser, but had a right to enter the car for the purpose of asking permission to wash his hands, or of trying to have the privilege, and that in addressing the porter he was dealing with him as a servant of the company.”

A second examination of the record has had the effect of confirming: the correctness of that conclusion.

The preponderance of the evidence on that point, although very conflicting, shows to our entire satisfaction that plaintiff did ask permission of the porter to wash his hands, and that after an exchange of a few unpleasant words, the porter struck him on the head with a blunt instrument, while plaintiff was standing at the threshold of the door of the Pullman car. He was stunned by the blow, which felled, him to the platform, whence he was picked up and brought to the forward car by one of his friends. His testimony as to the main features of the incident is corroborated by that of two other witnesses, although no witness saw the whole incident.

Hence we conclude that the attack was unprovoked, unjustifiable and willful on the part of the porter, for whose conduct the defendant company must be held liable in damages.

As the Pullman Car Company, the immediate and direct, employer or master of the wrongdoer, has been shielded from responsibility by our previous decree, the case may be a hard one on the defendant, but under the authorities by which we have been guided, the hardship appears inevitable. Our ruling in that case rested on the pivotal feature that there existed no contractual relations between plaintiff and the company. Our conclusions find ample support in the decision of the case in 76 N. Y., hereinabove referred to, in which the railway company was made to respond for the ejectment of a passenger from the drawing-room car, in winch he claimed the right of occupying a seat Without paying therefor.

On this point we quote from the opinion of the Supreme Court of the United'States in Roy’s case, 102 U. S. 458, the following utterances:

“ Whether the Pullman Car Company is not also and equally liable to the defendant in error, or whether it may not be liable over to the railroad company for any damages which the latter may he required to pay on account of the injury complained of, are questions which need not be itere considered. That corporation was dismissed from the case, and it is not necessary or proper that we should now determine any question between it and others.”

Under all the circumstances of. the-case we hold that plaintiff is entitled to recover damages in the sum of. one thousand dollars.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided, reversed and the verdict of the jury set aside, and it is now ordered that plaintiff do have and recover judgment of the defendant, the Louisville, New Orleans and Texas Railway Company, in the sum of one thousand dollars, and for costs in both courts.


author: Penner, J.

text:
    No. 10,004.
    Louis Spotorno vs. August Fourichon.
    Under the law of Louisiana slander is a quasi offense, actionable under the broad provision of the Code: “Every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it.
    If the woids are false, iniarious and uttered malo animo, they are actionable.
    Both malice and injury may be inferred from the nature and falsity of the words.
    Under the existing social habits, customs and prejudices, considered simply as facts, charging awhite man with beipg a negro, is calculated to inflict injury and damage to the knowledge of all persons, and no one can so make and circulate such a charge without knowing its injurious effect and intending to injure, if he knew that the charge was false. Such charge was recognized as actionable slander by this Court under the Constitution of 1868. 21 Ann. 308.
    APPEAL from the Civil District Court for the Parish of Orleans. Houston, J.

      F. Micliinarcl for Plaintiff and Appellee.

      Branch K, Miller for Defendant and Appellant.
   The opinion of the Court was delivered by

Penner, J.

This is an action for slander by falsely and maliciously asserting and circulating the report that plaintiff was a negro. Under our laws slander is a quasi offense, actionable under the broad provisions of our Code, which declares: “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.”

Our courts are not bound by the technical distinctions of the common law as to words actionable perse, and not actionable perse, and allowing for the latter only actual pecuniary damage specially pioved. Miller vs. Holstein, 16 La. 389; Feray vs. Foote, 12 Ann. 894

If the charges are false, injurious and made maliciously or mello ■animo, they combine all the elements essential to support the,action.

Both the damage or injury and the malice may be inferred from the nature and falsity of the words and from the circumstances under which they were uttered without the necessity of special proof. Miller vs. Holstein, 16 La. 389; Daly vs. Van Benthuysen, 3 Ann. 69; Fresch vs. Maddox, 11 Ann. 206; Cass vs. N. O. Times, 27 Ann. 214.

Under the social habits, customs and prejudices prevailing in Louisiana, it cannot be disputed that charging a white man with being a negro is calculated to inflict injury and damage. We are concerned with these social conditions simply as facts. They exist, and for that reason we deal with them. No one could make such a charge, knowing it to be false, without understanding that its effect would be injurious and without intending to injure. This was treated as an actionable slander by the court organized under the Constitution of 1868. Foye vs. McMahon, 21 Ann. 308.

Defendant admits that plaintiff is a white man, and defends only by denying that he ever made the charges alleged.

We have considered and weighed the evidence and can find no reason to reverse the conclusion of the district judge that the proof is sufficient.

It is claimed that the evidence of one witness should not be considered, because the facts testified to by him occurred more than a year before the suit, and were, therefore, within the prescription pleaded. This is doubtful; but, if true, the evidence would be entitled to weight as corroborating the testimony of the other witnesses who proved like statements within the prescription term.

We think the record affords no ground for disturbing the moderate damages allowed.

Judgment affirmed.


author: Watkins, J. Pociié, J.

text:
    No. 10,104.
    George Sarpy et al. vs. Adèle Hymel et al.
    "^Prescription does not run against the exercise of a servitude of drainage established by a police jury in pursuance of Section 6 of the act of 25th of February, 1813, on Bonnet Carré point and adjacent lands, in favor of one of the proprietors of an estate included in the system ordained, who participated in its establishment and afterwards resisted and prevented its repair and improvement,
    A servitude having been establised under|the police power, conferred by that statute, its control continues to reside in the police jury; neither party to it can prevent or oppose its repair or improvement; no individual can go, at his pleasure, on the premises or estate of another and make repairs on or improvements of such servitude he may deem necessary; and such repairs or improvements can be^uade in pursuance of the authority and ordinances ot the police jury only.
    An appellee who has.not filed a timely motion or prayer for an amendment of the judgmen appealed from can obtain no relief on appeal.
    APPEAL from the.Twenty-sixth Judicial District Court, Parish of St. John the Baptist. Most, J.

      Henry Denis for Plaintiffs and Appellees:
    The police jury is empowered, under the provisions of acts of 1813 and 1814 (Rev. Stat., Sec. 2743), to ordain and establish the draining of the lands of Bonnet Garré point. 5 Ann. 424.
    Police juries have the exclusive right, under those laws, to determine how lands within the points on the Mississippi river should he drained, without regard to their relative position as superior and inferior estates. 6 Ann. 97.
    The courts will presume that the police jury exercise such power properly and judiciously. 12 Ann, 554.
    Such power is a delegation of the police power of the State. It remains in force as long as it is not; withdrawn by the State. It is as complete and• sovereign in the municipal corporation as in the State itself. 39 Ann. 252; Cooley Const. Limit., p. 713 etseq.; Dillon Munic. Corp., 1 vol., 166 et seq.

    The provisions of the code on the subject of servitudes do not apply to works of public or common utility. C. C., Art. 665.

      Beranlt 0/tenet on the same side.

      T. J. Semines and Legendre for Defendant and Appellant:
    The code divides servitudes into natural, legal and conventional.
    Natural servitudes result from the relative position of estates; legal servitudes arise from the law, and conventional servitudes from contracts.
    The code does not recognize the “police power” asasourceof setvitude.
    A conventional servitude, operating on real estate, is> real right, a jus in re, and as such •does not affect third persons unless recorded. C. C. 2266; Demolombe des Servitudes, No. 733; Aubry & Rau, Yol. 3, p. 75; Mourlon, Traité de Transcription, Nos. 115, 119; Lamarcis, Cora, des Servitudes.
    Aright of servitude maybe lost by nou-usage for ten years. C. C. 3546-789; 34 Ann. 616; 15 Ann. 427; 1 R. 321.
    In cases of non-usage of continuous apparent servitudes, prescription begins to run from the day that an act contrary to the servitude has been committed. C. C. 790; Duranton, Yol. 5, No.- 685; Demolombe des Servitudes, No. 1009; Toullier, Yol. 3, No. 692; Aubry & Rau, p. 105.

      When the prescription of non-usage is opposed to the owner of the estate to whom the servitude is due, it is incumbent on him to prove that he or some person in his name has made use of the servitude as appertaining to his estate during the time necessary to prevent prescription. C. C. 783; 15 Ann. 427; Toullier, Vol. 3, Nos. 669-691; D.39, L. 3, T. 12-20.
    The lower estate is subject to the charge of receiving the waters that flow naturally from the higher estate. This servitude results from necessity and the-laws of vicinage. 15 Ann. 681-197; 4 Ann. 168; 19 L. 351; 12 L. 504.
   The opinion of the Court was delivered by

Watkins, J.

Plaintiffs are the widow and heir of Delord Sarpy and the owners of the Glendale plantation, having derived title from Norbert Rancon; and the defendant is the owner of the Gold Mine plantation, having derived title from Thomas May.

These plantations are contiguous estates, and situated in close proximity to Bonnet Carré point, on the Mississippi river, and this controversy involves their mode of drainage.

The plaintiffs’ contention is that the police jury, in pursuance of a special statute, established a plan or system of drainage for said plantations and others on Bonnet Garré point, and that defendant’s author accepted same and bound her to it.

They seek the recognition and maintenance of the servitude of drainage thus established, and in support of it plead, acquirendo causa, the prescription of ten, twenty and thirty years.

Tiie defendant denies the establishment of a servitude — legal, conventional or otherwise — on her property in favor of the plaintiffs’ property ,• and also denies the construction and ownership of a ditch in common between the two estates.

She avers that the ditch described in the plaintiffs’ petition was constructed to drain lands other than those of plaintiffs, and that said ditch was never completed.

In the alternative, she avers that, in case the servitude claimed is found to have existed, same has been lost by non-usage for ten years and by the renunciation and remission thereof on the part of the plaintiffs and their authors.

In reconvention she claims that plaintiffs’ lands are lower than hers and are subject to a natural servitude in favor of hers, and are bound to receive the waters that flow naturally from her lands. That, contrary to law, plaintiffs have erected dams and embankments at the boundary line of respondent’s estate, which obstruct the natural flow of the waters from her lands, and thus interfere with • the servitude irlue by plaintiffs estate to her own.

The record discloses the following salient facts, viz :

That the Gold Mine plantation has a front on the Mississippi river, which, at that place, flows due east to the extreme point of Bonnet Carró, and that from that point it flows due south, passing in front of Glendale plantation.

That Glendale extends back from the river in a due west course to a point at which it intersects the rear line of Gold Mine, which extends back from the river in a due south course ; the boundary line between them being a diagonal one extending from northeast to southwest.

The two plantations are situated at right angles with each other and constitute the west and south boundaries of Bonnet Carró point, while the river constitutes the north and east boundaries.

This intervening space is sub-divided into quite a number of plantations, which are owned by a number of different proprietors — -all of which are separated from the swamp in the rear.

The natural course of their drainage is in a southwesterly direction, and that results, in part, from the fact that they are more elevated, and, in part, from the formation of a crevasse on the upper side of Bonnet Carró point. In consequence thereof both the rain and river waters, at high tide, were precipitated upon Glendale, to its great injury and damage.

Originally the course of Bayou Tonó and that of some small coolies was from the river alone in a southerly direction across the central portion of Glendale, and that of Bayou Roussi from the river alone in a southwesterly direction diagonally across the rear portion of Gold Mine. From the latter there was an outlet which passed through the rear portion of Glendale.

In pursuance of Section 6 of the act of March 25,1813, the police jury undertook the adjustment of the drainage of these different estates; and on the 3d of June, 1850, adopted an ordinance in which provision was made for the appointment of a committee having authority to examine “ the locality of Bonnet Carre point and adjacent lands,” and with full authority “to open and clean out Bayou Tonó and Bayou Roussi, situated on said point, down to the lower limit of the parish.”

It was therein “resolved that the opening and cleaning of said bayous shall be at the common expense of the proprietors of the land ■forming Bonnet Carre point.”

At a subsequent meeting of the police jury the committee made a report in which they recommended the dredging and cleaning of Bayou Tonó, the cutting of a new ditch or canal from Bayou Tone to Bayou Roussi, the digging and cleaning out of the latter as far as its junction "with the Rancon canal, behind the Gold Mine plantation, at that time • owned by May, and thence continued until it reached the swamp and ■ Bayon Pin ” in the rear.

On the 1st of April, 1852, the committee entered into a contract with Pat Phelan to have the Bonnet Carré point and adjacent lands drained and to make the canals and drains necessary for the same.” He completed the construction of the canal from Bayou Toné to Bayou Roussi, dredged and deepened the latter, and completed the canal beyond Bayou Roussi to its intersection of Rancon canal; but he ‘failed to complete about nine or ten arpents of the canal-at the lower or outer end, which was • necessary to make it reach Bayou Pin. Phelan brought suit against the police jury for a balance due him, ■ and it resulted in a compromise whereby Phelan realized the full ■ amount of his contract of $4000, less $650. It remains in that condi>tion to this day.

This canal was denominated Company canal. It was begun at a ■point on the upper or northern boundary line of Glendale, a little east -of where Bayou Toné intersects it, thence extended west on that line to its intersection of the eastern boundary of Gold Mine, and thence across Gold Mine until it intersected Bayou' Roussi and made • connection therewith.

Through this canal the waters of Bayou Toné and the drainage ■waters from the plantations on Bonnet Carre point were passed into •Bayou Roussi and thence into the swamp in the rear of Gold Mine and Glendale, and by this means Glendale was relieved from distress • and overflow during high water.

It appears that, at present and during the last several years, that .portion of Bayou Roussi that intersects Gold Mine plantation and -unites with Company canal has become obstructed with decayed vegetable matter, weeds and willow trees, and has become partially .■filled with dirt by means of the cultivation of its banks for a series of -.years, so that the flow of water into it from Company canal is retarded and the water backed up and thrown upon the plantations on Bonnet >Carré point and Glendale, whereby the latter is frequently overflowed.

It thus appears that, if Bayou Roussi was opened and the water permitted to flow through it from Company canal, Glendale would be -entirely relieved and Gold Mine would suffer little, if any, injury.

, Because of the- obstructions in Bayou Roussi and the,defendant’s -objection to its being cleaned and deepened, the. plaintiffs have brought this suit for the recognition and re-establishment of Company-canal and the deepening of Bayou Roussi.

It is a fact — one evidenced by this statement — that Glendale is now,. and has been for many years, exclusively drained by means of Rancon canal, which extends from the river west,’ on its southern boundary,, to the swamps in the rear. There is but little difference in the altitude and inclination of Glendale or Gold Mine, and there is but a. small portion of the latter so situated as to naturally receive drainage from the former.

But, asan additional protection, one of plaintiffs’ authors caused to-be constructed, in 1828, a line of levee along the northern boundary of Glendale, and also upon the boundary line between it and Gold Mine,, and the same has been since maintained. Company canal was constructed parallel with it on its northern boundary.

During the stress occasioned by high water and threatened overflows, plaintiffs and their authors have frequently felt constrained to-open small culvert in these levees so as to pass a portion of the water through and thus obtain partial relief.

With Bayou Roussi thus obstructed, Bonnet Carré point and Glendale suffer from annual overflows, while Gold Mine has no serious interruption of her drainage.

Bayou Roussi has been constantly treated -as a part of Company-canal by the proprietors of plantations on Bonnet Carré point, and-, also by the plaintiffs and their authors, and they have frequently exercised the right to clean it of grass and weeds without objection on the part of the proprietors of Gold Mine. But the defendant has-steadily refused te have it dredged or deepened.

This question of drainage has been a mooted one between the. proprietors of Glendale and Gold Mine plantations for a great many years, and in 1850, prior to the establishment of Company canal by the police jury, there was litigation between Thomas May and Norbeit Rancon, the object of which, on the part of the former, was to coerce the drainage of Bonnet Carré point and Gold Mine over Glendale, and to compel Rancon to demolish and remove the levee and embankments that had been established fifteen or twenty years before. To-this pretension Rancon made resistance on the identical grounds on-which the plaintiff predicates his present suit. Hence, it is necessary to examine the report of that case, and see what bearing it has upon the present controversy.

Vide, Thomas May vs. Norbert Rancon, 5 Ann. 424. The defendant* among others, made the following defences, viz :

ic That the natural flow of the water along the line of the levee complained was in a direction parallel with it. That the levees or dams complained of have existed for more than fifteen years without any opposition from the plaintiff or his vendors, and that he has waived, by liis silence, any rights he might have.
That the said levees were mot constructed with the intention of arresting the natural flow of the waters on plaintiff’s land, but for the purpose of counteracting the effect of two wide draining canals now existing on his estate, which accumulate the water in large quantities, raise it above its level, and force it with great rapidity through his land. That those canals extend far beyond the cultivated lands of the plaintiff; that they change the natural course of the waters, and should not be permitted to continue open.
That the coulées through which some of the water that falls on the plaintiff’s land and finds its way on defendant’s estate, are the result of crevasses, and cannot be considered natural drains ”

That paragraph clearly shows that the issues in this case are identical, except in so far as the condition of things has been changed since the construction of Company canal.

That suit was tried by a jury who found for the defendant, and the plaintiff appealed. On the hearing in this Court the discovery was made that there had been improperly admitted, over the defendant’s objection and exception, certain incompetent evidence, and, consequently, the verdict and judgment were set aside and the cause remanded.

As a means of solving the difficulty presented, the Court took occasion to recommend the parties to seek relief under the provisions of section 6 of the Act of March 25, 1813.

The pertinent provision of that act reads as follows, viz : When a point of land on the Mississippi or other water course shall be divided among several proprietors (and), it shall be found necessary to dig one or more common draining ditches, the said (police) juries shall have the power to ordain that said ditches be dug at the expense of said lots, and that the expense be borne by a contribution among said owners, to be levied in such manner as the said juries shall respectively prescribe.”

The Court then proceeded to say :

Those powers are ample to meet the present case and to remove all the difficulties which are shown to exist in relation to draining the point of Bonnet Carre.
“We, therefore, earnestly recommend the parties to this suit to avail themselves of the provisions of this law, and not to force us to make a decision which may be injurious to both. The police jury have the right to determine how lands situated as these aie, shall be drained without regard to their relative position, and if any rational system of drainage be ordained by. them, it shall be respected and enforced by us.”

That decision was rendered in May, 1850, and it was in pursuance of this recommendation by the Court that the police jury ordained and established Company canal, as above described.

The decision, as well as the ordinances themselves, leave no doubt in our minds of the fact that both Glendale and Gold Mine plantations were specifically included in this plan or system of artificial drainage —not, possibly, as a part of Bonnet Carre [point, but as adjacent lands ” in like situation.

In so deciding, the Court only followed the precedent established in the case of Martin vs. Jett, 12 La. 501, and to which special reference is made as authority for their decision.

It has been followed by the case of Walsh vs. Arnous, 6 Ann. 97, in which the same recommendation was made by the Court.

In Avery vs. the Police Jury of Iberville, 12 Ann. 554, the Court upheld tlie constitutionality of the Act of 1813.

Neither the law nor the authority of the police jury has been questioned since, and it is manifest that the defendant and his authors acquiesced in the construction kof Company canal — indeed, it is in proof that May paid at least one-half of the assessment made against Gold Mine by the police jury for the purpose of constructing it.

There was a clause in the Act of March 3, 1814, which is explanatory of section 6 of the Act of 1813, “ saving to individuals or persons aggrieved the right of complaining for the making or opening of such natural or artificial drainings, when * * hurtful to them, before any court of competent jurisdiction, as in case of a common civil action.”

Under the evidence in the record, the defendant is estopped from gainsaying or disputing the existence of Company canal, or that Bayou Roussi forms a part of it. Her author bears quite as much of the responsibility for it, if not more, than any one else, because it was his suit against the former* proprietor of Glendale that brought it into existence.

There is no sufficient evidence in the record to show any relinquishment or abandonment of this canal on the part of plaintiffs or their authors. On the contrary, the proof is that the rain and overflow water from Bonnet Carre point passes through the upper portion of Company canal, but that same is partially obstructed in its flow through Bayou Koussi in its course to that portion of the canal below Gold Mine. Hence, the provisions of the Code relied upon by the-defendant are not applicable. R. C. C. 815, et seq.

For like reason the servitude has not been extinguished by non-usage, and it is not prescribed. R. C. C. 789, 790.

Indeed, prescription could not run against the exercise of a right of' servitude when the person pleading prescription has resisted and prevented its exercise, as defendant has done in this instance. R. C. C. 792.

The judge a quo held “ that the servitude having been established under the police power of the parish authorities, the control of the common canal or ditch, known as the ‘‘Company canal,’ still remains in the police jury; that neither can the defendant prevent or oppose the digging or cleaning of any portion of the canal through which the servitude has been established, nor can the plaintiffs, or other individuals, go, at their pleasure, on defendant’s land, without her consent, for the purpose of digging or improving the condition of the drainage canals, and that such improvements must be done by order-of the police jury on such terms and in such manner as they may think proper.”

These observations are eminently wise and correct, and should be-enforced.

We are of the opinion that the system of artificial drainage, which was established by the police jury, was for the mutual benefit and advantage of the proprietors of estates on Bonnet Carre point and others adjacent thereto, including Glendale and Gold Mine, and that they are entitled to the full and complete exercise and enjoyment, but only through the parish authorities, as herein intimated.

But the record discloses that Company canal has never been so extended as to form a connection with “ Bayou Pin ” in the rear, as-originally ordained by the police jury. We are of the opinion that it is but justice and equity to the defendant that it should be completed, and tha.t the judgment should be amended in this respect.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be so amended as to require the police jury, in case they determine to enforce this decree, to cause, at the same time, the-Company canal to be extended so as to form a connection with' t£ Bayou Pin,” and that, as thus amended, said judgment be affirmed.

It is further ordered that the costs of appeal be taxed against the-plaintiff and appellees.

On Application por Rehearing.

Pociié, J.

Plaintiffs charge' two serious errors to their detriment in onr decree:

1. They urge that having found the law and the facts in their favor, as declared in their pleadings, we should have granted them the relief which they had prayed for; and that therefore we should have absolutely recognized their right to enter on defendant’s lands for the purpose .of cleaning and deepening the “ Bonnet Carré Company Canal,” or, in the alternative, the defendant should have been condemned to make those improvements herself.

Such was the purport of the prayer of their petition. But the part of our decree complained of in this regard, was simply in affiimanee of the judgment rendered by the district court, which subordinated the recognized right of plaintiffs to clean and deepen the canal to the action and control of the parish authorities.

Now, plaintiffs are appellees from that judgment, and they have not made a motion or prayer for an amendment of the same. It is-elementary, under the rules of our jurisprudence, that we are powerless to amend the judgment in their favor. Hence that feature of the decree must remain undisturbed.

2. They next complain of that part of our decree which amends the judgment appealed from so as to require the police jury, in case they determine to enforce this decree, to cause, at the same time, the Company canal to be extended so far as to form a connection with “ JBa/you Pin.”

A second examination of the whole case has led us to the conclusion; that-we had committed an error on that point, superinduced by an allegation in defendant’s answer to the effect that said Company canal or “ditch was-never completed or finished.”

Our second consideration o'f the pleadings and of the evidence has-satisfied us that that allegation formed no issue in the case; no prayer was predicated thereon, and no contestation on the trial grew out therefrom.

The record does show that the canal contracted for by the police-jury was contemplated to have been extended to Bayou Pin, and that this has never been done. But, in point of fact, the only issues which were tendered by the pleadings, and which were tried and disposed of in the district court, were the contested right of plaintiffs to claim any legal title to, or protection and advantage from, the Company canal as-dug and made under the authority of the police jury; and the reeonventional demand of defendant to exercise her alleged right of natural servitude of drainage over plaintiffs’ lands.

It appears to our satisfaction from the evidence that a proper dredging and cleaning of the “ Company canal,” including that portion of the same known as “Bayou Rousse,” throughout its entire length as made under the contract with the police jury, would afford all the relief which plaintiffs claim and contemplate, without injurious effects to defendant’s lands and drainage.

Hence we conclude that the judgment appealed from was as favorable to her as the nature of the case could admit of, and that she was entitled to no relief at our hands.

We therefore deem it our duty to re-open the case with the sole view of setting aside that portion of our decree which amended the judgment in favor of appellant. To that end we shall recast our decree in full.

It is therefore ordered that our previous decree herein he annulled and set aside, and it is now ordered that ,the judgment of the district court be affirmed at appellant’s costs.

liehearing refused.


author: Bermudez, C. J.

text:
    No. 10,153.
    State ex rel. Barthet vs. Judge Division B, Civil District Court Parish of Orleans.
    Tlie Supreme Court will not interfere with inferior courts iu cases of contempt, when it is found that such courts exercised a jurisdiction vested in them, that the decree rendered was a proper exercise of judicial power, and that disobedience of such order was punishable as a contempt.
    In such cases it has no concern with the question whether the act charged was or not committed, or did or not constitute a contempt, and will not review the facts on which the lower court acted to punish for contempt.
    ^PPLICATION for Certiorari.
    F. JHollinará for Relator :
    Villavaso vs. Walker. 24 Ann. 213; Matter of Vanderbilt, 4 Johnson's Chancery, 1Í. p. 57; State vs. Harvey, 14 Wisconsin, 151; Case of Lafon’s Hen., 3U. S., 713; Arts. 1011 and 1012, C. P.
   The opinion of the Court was delivered by

Bermudez, C. J.

This, is au application for a certiorari. The complaint of the relator is that the district judge has arbitrarily sentenced him for contempt for having violated an injunction which at the time of its alleged infraction had ceased to have any existence.

In his return, the district judge sets forth reasons for his justification.

The prayer is that the validity of the proceedings attacked be considered, and that the sentence be annulled to all purposes.

It appears that the district court, in 1885, issued an injunction to prevent the defendant (relator) from carrying on the business of a slaughter-house, within certain limits; that on appeal the injunction was declared by this Court, in 1887, to have properly issued, because the defendant had undertaken to continue the business, after the revocation of the previously obtained permission to do so, from the proper authority; that since the injunction was perpetuated, the defendant obtained in 1888, from the City Council an ordinance permitting him to carry on the business within the limits in which he had first done so; that the defendant having engaged in carrying on a slaughter-house within said limits, the plaintiff took a rule on him, to show cause why he should not be punished for contempt for violating said perpetuated injunction, and that the defendant pleaded in justification, the ordinance allowing him to do so.

The district judge heard the rule and came to the conclusion that the acts of the defendant were commiited in contravention of the injunction which had not ceased to be in force. He therefore sentenced him, for contempt, to ten days’ imprisonment.

Having been confined, in furtherance of the sentence, the relator applied for relief in this Court and a restraining order was made suspending the execution of the sentence, until the further order of this Court, and the relator was provisionally released.

The writ of certiorari issues to an inferior judge, only to ascertain of the validity of proceedings before him. C. P. 855.

Such proceedings, in cases of contempt, can never be annulled, unless the court had no jurisdiction or judicial power to make the order disobeyed, or disregarded the rules of procedure prescribed by law in proceeding to punish for contempt.

Hence it is, that, when it is found that the court had such jurisdiction and power and has proceeded in the manner and form required by law, the proceedings must remain unaffected, however erroneously the court may have determined the issue before it.

It has consequently been uniformly held, by this Court, that, under an application for a eerMorwri, the intrinsic correctness of the judgment complained of, could never be considered, where the court had such jurisdiction and power and exercised it in the proper form, and that the inquiry, where the court had such jurisdiction and power, must be restricted to the extrinsic correctness of the decree.

The law, in clear terms, says, that the writ issues to ascertain the validity of the proceedings; that is, their apparent correctness.

In the present instance, it is indisputable that the district court had. jurisdiction to issue the injunction, for thus, this Court found. Villavaso vs. Barthet, 39 Ann. 247.

It is indisputable,'also, that having such jurisdiction, it had the-power to enforce it and coerce, by proper means, obedience to its behest; that is, to punish, on observing the forms of law, the violator of the prohibition of the injunction. C. P. 130.

In a kindred case, this Court said: “All courts possess the inherent, power of bringing to their bar and punish for contempt of their authority, not only the parties to the litigation, the jurors, the witnesses, the officers of the court, but also offenders not connected with the controversy, whenever they impede or obstruct the process of the court, disturb its proceedings, insult its officers or commit any act which interferes or thwarts its administration of justice.

“Each court has necessarily the power of determining for itself,, whether the act or acts thus done constitutes or not a contempt of its authority, and when it has exercised that power and passed sentence,, in the manner and form prescribed and within the limitations fixed by law, it does not appertain to this Court, as a rule, to inquire into the facts passed upon, with a view to ascertain and determine whether a contempt was or not committed and to release the offender.

“ The regular ruling of a judge on a question of contempt, is no more revisable than his regular ruling in an unappealable case.

“ It is an essential, privileged and significant attribute which should be exercised with independence; but with discretion and dignity.

“ It is unfortunately possible, that forgetful of his mission of peace and conciliation, a magistrate may palpably ill use that conservative power, so as to become reproachable with oppression in office; but in such instances, rarely to occur, the question of abuse of authority cannot be determined and remedied against by the process now sought.’’ State ex rel. O’Malley vs. Judge, 35 Ann. 1197; also, State ex rel. Brown vs. Houston, Ib. 1194.

To these conservative views we adhere.

From the papers before us, it appears that the proceeding for contempt was by rule, contradictorily tried with the defendant therein,, who is the relator here. This was the proper proceeding, the offense-•charged not having been, committed in faeiem curice, in which case a •rule is not necessary.

Another complaint of the relator is that the district judge, in order to pass upon the rule for contempt, had to determine whether the permission obtained was or not valid; that be has done so, and that his judgment will constitute res judicata on the trial of such an issue when presented in the case itself.

There exists no room for such apprehension. When that matter will be presented in proper pleadings, the district judge will have full power to change his views should he determine that he erred in enter-taining them when deciding the rule for contempt. The relator may, besides, rest certain that, under no contingency, will that ruling bind this Court, as res judicata, should the validity of the permission granted, pleaded in justification, ever] be submitted to its •consideration.

Finding, therefore, that in issuing the injunction, the court exercised ■a jurisdiction vested in it; that the injunction was a proper exercise of judicial power; that disobedience of such an order was punishable as a contempt, and that the proceedings were regular, we conclude •that, as we have no concern with the question, whether the act charged was or not committed, or did or not constitute a contempt, we are powerless to grant the relief sought.

It is, therefore, ordered and decreed that the restraining order herein •made in- limine be rescinded and that the application herein be refused •with costs.


author: Poché, J.

text:
    No. 10,053.
    Succession of Pierre Déjan—Jules Victor and Arthur Déjan vs. Mrs. Josephine Schaeffer, Widow Pierre Déjan.
    The collateral attack "by simple heirs on tlie validity of a judgment of separation of property between a deoeased husband and bis surviving wife, must be restricted within the same limits which would circumscribe an attack made by the husband himself, if lie were alive.
    ♦Creditors and forcedheirs alone, in a collateral manner, justify an. inquiry into the validity of such judgments on their merits.
    •Simple heirs at law derive their rights from^the husband or wife, as the case may be, and can institute no attack and no inquiry which would not he opened to the deceased, under whom they claim, if he or she were alive.
    In such a case the inquiry must be restricted to an examination to ascertain whether the court which rendered the judgment had [jurisdiction, and whether it exorcised that jurisdiction according to the forms of proceeding established by law.
    'To create a community sought to be dissolved at the instance of the wife, there must be a lawful marriage, "but it is immaterial whether the particular marriage declared upon be valid er not, provided it he shown that there was a lawful marriage between tlie parties.
    All the property purchased by a wife duly separated in property from her husband, after the date of the judgment Jof sepaiation, becomes her separate estate, to which tho husband or his heits at law can lay no claim.
    APPEAL from tlie Civil District Court for tlie Parish of Orleans. Tissot, J.

      D. O. & L. Ij. Labatt and Tbos. J. Semmes for Plaintiffs and Appellants :
    1. Federal authority is powerless to control prohibited mairiages between white and blacfc citizens of a State. 3-1 Ann. 269. Therefore, Art. 95 C. C. 3825, preservod its original force until November 14, 1870, so that a civil marriage on the 18th of February, I860was null and void and no community resulted, to he dissolved by any court of justice. Succ, Colwell, 34 Ann.; 4 Wash. 371; 12 Wall. 430 * If Yall. 7C; 1 Woods, 537.169; id* 80; 48 Cal. 36, 48Ind. 327 ; 21 Ohio St. 198; 53 Ala. 150; 42 Ala. 125, 525; 106 XT. S.r Pace vs. Ala. 585 ; 27 Yt. 149 ; 1J Pet. 102.
    2. The Act of 1868, No. 230, relative to ecclesiastical marriages, is exceptional, and did not authorize justices of the peace to confirm religious marriages between persons of opposite color. Neither did the State Constitution of 3S64, 1868, the Civil Bights Bill of 1866, or the 14th Amendment, contemplate a repeal of that prohibition. By that act, a confirmation of a religious ceremony established a retroactive community from the date of the ecclesiastical marriage, unless other stipulations are “ embodied in the act.’ and no subsequent separate act of the husband can produce a modification of the community. (Act of '68, No. 210.) Moreover, Act No. 210 is pregnant with a legislative affirmation that Art. 95 was not previously repealed by Federal authority or State Constitution, as held by the court a qua. 34 Aim. 265. ^ucc. Colwell.
    3. “When the community of acquets and gains is dissolved by death, the respective interests of tlie suivivor and of deceased spouse attach, at the moment of the dissolution, to the property of the community. This right will he recognized if sued for in the proper action, and may be enforced at anytime, when demanded by a partition of the property or otherwise, even when burdened with the usufiuct in favor of the survivor.” Tugwell vs. Tugwoll. 32 Ann. 849; 5 Rob. 12.
    4. “When the surviving spouse files an answer denying the existence of a community and asserts title to tlie property withheld from the succession by sepatate acquisition, after its dissolution upon a judgment of court, and relies solely on that record, as her muniment of title, the proceedings and record are not “ res judicata,” and their verity must bo supported by satisfactory evidence aliunde. Such'a-judgment is at most the beginning of proof, and plaintiff is bound, in such suits, to Teverify clearly the facts on which it was based.” 19 Ann. 97, 250 ; 30 Ann. 87; 8 N. S. 459; 4L. E. 257, 422; 3.1 B. 536 ; 12 L. B. 296 ; 4 Ann. 135; 31 Ann. 405 ; 4 Ann. 73; 11 B. 536; 13 Toullier, Nos. 69, 73 and 75; 11 Ann. 697; 8 N. S. 240; 4R.335; 14 Ann. 084; 15 Ann. 33,81; 17 Ann. 113; 23 Ann. 164 ;t24 Ann. 280.
    5. “ The ca-es in which the onus is on the judgment creditors are those in which wives have obtained judgments against their husbands. They are exceptions to the rule that he who alleges fraud must prove it.” 2 Ann. 544; 6 Ann. 631; 1 Boh. 431; 10 Ann.272-, 7 Ann. 93, Webb vs. Peet.
    6. Where a wife confirms a judgment by default, against her husband, which presents on its face all the concomitants and indicia of a collusive voluntary separation, prohibited by the Civil Code, it is null and ivoid, even as between the “parties themselves.” 11 Ann 697; Biret Null, IToI. 146, 147, 149, 376, 377; 7 Toullier-Duvergier, p. 13; 14 Ann. 619; R. C. C. Art. 2427 (2401); C. H. 1443 ; 9Ann.l68; 10 Ann. 688; 15 Ann 81 The Code says, to be valid, “ It can only he ordered by a court of justice after hearing all parties.” R. C. C. 2427 (2401).
    7. The marital action of the wife is not accorded or governed by the Code of Practice, but is provided for in the Civil Code, and is controlled, by different rules from ordinary suits, and is to be pursued bonafide 'pn pain of nullity. Arts, 2428, 2427,1429 R. C. C. Execution cannot issue until after publication of the judgment for three months, in order to exclude the suspicion of collusion or fraud. 12.Merlin Rep. pp. 414, 417, 419.
    8. Where a litigant, in a petitory action, elects, to stand upon a title of acquisition, she cannot he allowed, during the progress of the trial on that issue, to shift her ground and set up title by inheritance, in order to prostrate and defeat the action of the law. 4 Ann. 416, Conner vs. Gridley.
    9. Since tli6 Act of 1844, and in its incorporation as Art. 915, R. C. C-, the former construction of Ait. 923 (O. C. 917), that it was governed by the exception in Art. 924 (918) has been changed and modified so that a surviving spouse no longer outranks natural brothers, but in lieu thereof holds such share iu usufruct, subject to two conditions, death or second marriage, and the naked title vests in the natural brothers and sisters or their descendants immediately. Art. 923 (917); Art. 915 R. C. C., new Article.
    10. The last expression of legislative will, in Act of 1844 and Art. 915,*;R. O. C., must predominate over the jurisprudence previous to its passage, and this Court is hound by the unambiguous terms of that statute, and discharges firmly its highest duty in the administration of justice when it enforces its plain words. 9 Ann., Suco, of Lee;. Tajasco case, 6 L. R.; 5 Rob. 12.

      WranTc D. Chretien and P. B. Theard ád Sons for Defendant and Appellee :
    After the adoption of the Constitution of 1868, white and colored persons could inter-marryv The prohibition to that effect, contained in Art. 95 of the Civil Code of 1825, being obliterated by said Constitution.
    A judgment of a competent court cannot be enquired into collaterally; its decrees directly on tho points reviewed are. as a plea of evidence, conclusive between the same parties, or those claiming under them, for the same thing, and can be corrected, if erroneous, only by a direct action iu nullity or by appeal,
    A judgment of separation of property and of dissolution of the community, obtained by the wife in 1876, cannot be attacked by persons claiming to be collateral heirs of the husband after his death in 1886.' On those points the judgment is final and irrevocable, and became so by the silence of the husband during his lifetime and by the uniform recognition of the validity of said judgment by both parties, in many acts and proceedings.
    The wife is called to the inheritance of her husband before his natural brothers. The plaintiffs have therefore no interest in the succession of their natural brother. R. C. C. 917 (911); R. O. C. 919 (933) ; R. C. C. 924 (918); R. C. C- 929 (923); Victor vs. Tagiasco’s Executor, 6 1. 644 ; Succession of Ducloslange, 2 Ann. 98; Succession of Dncloslange, 1 Ann. 181; Manette and Virginio Duplessis'vs. Betsey Young, 11 Ann. 120; Succession of Briscoe, 2 Ann. 268; Succession of Miller, 27 Ann. 574, 575.
    The Aot of 1844 relative to community property has not changed the order of succession,. The wife inherits in full ownership, and not in usufruct only, where there are no lawful relations. Succession of Lee, 9 Ann. 398; Succession of M Brinkman, 5 Ann. 27; Succession of Odille Hebert, 5 Ann. 122; Succession of Eitzwilliams, 3 Ann. 489.
    The provisions of the Act of 1844 are merged in Articles 915 and 916»of the R. C. C., under the title of irregular successions. The whole of the chapter treating of irregular successions is one law. There is no conflict between its provisions. In default, of lawful relations, the wife is called first to the succession of her husband, the natural relations next, and the State after. There is especially no conflict between Article 915 and Article 924 of the R. C. C. They provide for different cases: Succession of Ducloslange, 2 Ann. 98; R. C. O. 915 to 933; Lay re vs. Pasco, 5 R. 11 and 12; Laclotto’s Heirs vs. Labarre, 11L. 181.
    But simple heirs cannot disturb'a separation decreed after citation to tbe husband, duly published and followed by an execution,[and subsequently and uniformly recognized by both parties thereto, in] many acts and proceedings. Compton vs. Maxwell, 33 Ann. 685; Brown vs. Stroud, 34 Ann. 374; Kerwin vs. Hibernia Insurance Co., 35 Ann. 33 ; Chaffe & Sons vs. De Moss, 37 Ann. 186.
    The decree of sepai ation is valid; it was rendered by a competent court, after due citation ; it rests on clear and positive evidence; it was published and executed according to law; 'even if the money demand is erroneous, the separation is good, because the wifo had an industry of her own, and the chief object of a judicial separation is to emancipate her industry, to enable the wife to conduct her business, to earn a livelihood for herself and her family. R. p. 288, et seqChaffe & Sons vs. Watte, 37 Ann. 324; Davock vs. Darcy, 6 R. 342; Wehb vs. Peet, 7 Ann. 93; Holmes vs. Barhiu, 15 Ann. 554 ; Penn vs. Crockett, 7 Anu. 343; Raiford vs. Thorn, 15 Ann. 81; Henderson vs. Trousdale, 10 Ann. 548; Wolf & Clark vs. Lowly, 10 Ann. 272.
    A community dissolved hy a judicial separation cannot be re-establisbed in Louisiana. Pord vs. Kittredge, 26 Ann. 193 and 194.
    A wife may employ1 her husband as clerk, agent or manager, under her immediate control and authority; the fruits of her property belong to her, not to them jointly. Miller vs. Handy, 38 Ann. 160.-
    In a petitory action plaintiff muse make out his title; he cannot rely on the weakness of his adversary’s title. Young vs. Chamberlin, 15 Ann. 454, Pritchett vs. Coyle, 22 Ann. 57.
    The evidence shows that all the real estate in controversy was acquired by purchase by Mrs. Déjan since her separation, by authentic acts, in the execution of which she was ' authorized and assisted by her husband; and such acts cannot be destroyed by mere verbal and uncertain evidence; nor can they be questioned by the plaintiffs, who are neither forced heirs nor creditors, and who stand in the place of their deceased brother Compton vs. Maxwell, 33 Ann. 688; Kerwin vs. Hibernia Insurance Co., 35 Ann. 33 ; Chaffe & Sons vs. DeMoss, 37 Ann. 186.
   ' The opinion of the Court was delivered by

Poché, J.

Plaintiffs, suing as the natural brothers of Pierre Déjan, deceased, claim, as his only heirs at law, the naked ownership of the property belonging to Mm, as forming part of tbe community alleged to have existed between him and his surviving wife, up to the day of his death, on the 30th of October, 1886, he having left no children and no will.

The defense is that there is no property belonging to the community which once existed between Pierre Dejan and his widow; that said community was dissolved by the judgment of a competent court rendered on April 24, 1876, in execution of which the defendant bought in all the property which then stood in the name of her husband; and that all the property, one-lialf of which is claimed by plaintiffs, is her own separate estate, earned, acquired and purchased by her since the ■dissolution of said community.

That defense prevailed below, and plaintiffs appeal.

From the record it appears that the pivotal question in the case is the alleged absolute nullity of the judgment of separation of property rendered at the instance of the wife in April, 1876.

The pertinent facts are as follows :

Pierre Déjan, who was a colored man, and Josephine Schaeffer, widow Paul Krack, who was a white woman, began to cohabit together as man and wife in 1858; and being under existing laws (O. C. C., Art. 95) incapacitated from contracting a lawful marriage, they had ■recourse to a religious ceremony or marriage in order to sanctify their union, which took place on September 1, 1858. On the 18th of February, 1869, they appeared before a justice of the peace and contracted what they understood, and what purported to be, a lawful marriage. But, for reasons which are not apparent in the record, the parties went before a notary public on June 4, 1869, and ratified the private or religious marriage of 1858, in accordance with the provisions of Act No. 210 of 1868.

On the same day and before the same notary, Pit;i re Dejan made a declaration to the effect that at the time of his marriage with Josephine Schaeffer in September, 1858, she possessed in her own right the sum of $28,000, wdiicli she had acquired during her widowhood by her' industry and through lucky circumstances.

It appears that up to that- time she had been employed as housekeeper or servant by a family’ in this city, and that subsequently she assisted her husband or consort in' his labors as a small dealer in furniture, his business consisting for some time mainly in purchasing, repairing and reselling second-hand furniture.

The business prospered and was soon transformed into a considerable furniture store, carried on in the name of Pierie Dejan. But he met with reverses, and in 1876 he was heavily indebted and greatly embarrassed, m consequence of which his wife brought a suit against him, for the restitution of her personal funds, in the sum of $28,000, and for a separation of property, averring, among other allegations, her ability and désire to carry ón a furniture'or grocery business, and her fears of losing the fruits of her earnings through the embarrassed condition of her husband’s affairs and in the confusion of his losses, resulting from 'speculative ventures.

After personal citation on the husband," á default on his failure to' answer, and after other due proceedings, trial and proof of the wife’s demand, judgment was rendered in her favor as prayed for. After publication execution issued, and at the sale made thereunder, property of the husband, aggregating some $11,000, was adjudicated to the wife. That sale included the furniture stpre, which the wife has since carried on in her own name and as her separate industry, being therein assisted by her husband, who filled the functions of salesman and general clerk. In addition to the property thus and then acquired, Mrs. Déjan has since purchased considerable immovable property in her own right, as separate in property from her husband, by whom she was in every act of sale authorized and assisted.

Plaintiffs’ contention is that the judgment of separation of property of April 24, 1876, is absolutely null and void, fraudulent and collusive, and that it covers a consent judgment and voluntary separation between the spouses prohibited by law, and that, therefore, the community existing between the spouses was not dissolved before the death of Pierre Déjan in October, 1886, and that all the property purchased in the name of the wife fell in the community.

The main ground of that contention is that the marriage of February 18, 1869, on which Mrs. Déjan had declared in her suit for separation of property was itself an absolute nullity, for the reason that the legal incapacity which impeded a lawful marriage between the parties had not yet been removed, and that, therefore, no community could flow from such an abortive attempt of marriage, as without a lawful marriage there can be no community of acquets and gains. Plaintiffs then contend that the only lawful marriage existing between Pierre Dejan and Josephine Schaeffer was that of September 11, 1858, as legalized by the notarial act of June 4, 1869, under the provisions of Act 210 of 1868, from which they argue that, under that statute, the community between the spouses dated and took effect from September, 1858, and not from February 18, 1869, as fraudulently alleged by the wife and as decided by the court in the decree rendered in her favor.

That theory is first antagonizedj'_by plaintiffs’ pleadings, in which they allege that Déjan and his wife had been married on February 18, 1869, which averment was admitted by the defendant in her answer, thus judicially settling the status of the spouses and closing out all contestation or discussion thereon between the same parties.

Plaintiffs could not complain of being subjected to a rule of practice which, in another branch of the case, they invoke against their opponent, and which announces the doctrine as follows : “ We understand it to be a rule in tbe administration of justice that a man shall not be permitted to deny what he has solemnly acknowledged in a judicial proceeding, nor to shift his position at will to a contradictory one in relation to the subject matter of litigation, in order to prostrate and defeat the action of the law upon it.” (4 Ann. 416).

But, as they urge, in argument, that they took the date of the marriage from the wife’s petition in the suit for separation of property, by which they had been led into an error, we are disposed to give them the benefit of a doubt, and to release them from the rigor of the rule, preferring to rest our decision of the cause on other considerations.

Now, as their whole theory rests not only on an admission, but actually on the argument that Déjan and his wife were legally married when the.judgment of separation of property was rendered, it is undeniable that there did exist a community of acquets and gains at the time that the suit was instituted. Hence, naturally flows the conclusion that the judgment was not a nullity, on the ground that i* purported to dissolve a community, which had no legal existence, and, therefore, the community, which avowedly existed, must have been dissolved by the judgment, unless it turns out to be null and void on other grounds.

It is apparent, and it is not'denied, that the court which rendered it had jurisdiction ratione materia et persona, that citation had been issued and served, that issue had been joined by default, that a trial was had, proof administered and considered, and that after such hearing, judgment was rendered and signed in open court, that publication of the same was made and that execution was issued thereon.

Upon the face of the papers the judgment is valid. Can it be attacked collaterally ? The law and jurisprudence answer that it may, but only by creditors and forced heirs whose rights would be affected thereby. And such an attack, even as restricted to creditors and forced heirs, is itself an exception to the general rule which shields the binding force and effect of judgments from collateral attacks.

As plaintiffs stand before the Court as collateral or simple heirs, it is elementary that they can urge no other claims and direct no other attack but those which the deceased could himself advocate in his own behalf if he were alive.

If, therefore, it were true, as contended by plaintiffs, that Mrs: Déjan did not and could not own, in her own right at the time of her union with the deceased, in 1858, the enormous sum of $28,000, for which she obtained judgment in 1876, it is clear that, after solemnly acknowledging the fact in a notarial act in 1869,' after having knowledge of the proof made thereof on the trial of the suit for separation -of property, after quietly submitting to the execution of judgment predicated- on that fact, and after acquiescing therein for ten years Déjan could not be allowed, in a collateral attack, to impair the full force of such a judgment. It is equally clear that his simple heirs at law, who claim under him, who can exercise no rights but those which -are derived from him, have no better standing in Co urt for the same purpose and for the same line of attack, than he could himself command.

Whence could they derive a right to complain, being neither creditors nor forced heirs, even if it were apparent that the deceased tacitly or actively produced the result which they desire to avert? As to' them, the judgment which they seek to avoid is protected from ■a collateral attack not only by reason' and law, but by the authority of numerous adjudications of the Court, going back to the early history of our jurisprudence.

In the case of Kerwin vs. Insurance Co., 35 Ann. 33, this Court, in dealing with the pretentions of certain heirs who sought to claim, as belonging to the community, property which had been purchased in the name of the wife, with the assistance and authorization of the husband,'denied the right of the husband or of his legatees' or simple heirs to avoid tlie effect of such a contract, and it added:

“ Only creditors aud forced heirs are excepted from this rule, and the latter to the extent of their legitime only and for the purpose of protecting the same.”

A similar claim was presented in the case of Brown vs. Stroud, 34 Ann. 374, in which the Court, guided by the same doctrine, used the following words: The plaintiff claiming only as an object of his (the deceased) bounty, being neither creditor nor forced heir, has and •could have, no better right that the testator possessed, and we elearly see that he had none.”

The case of Compton vs. Maxwell, 33 Ann. 685, is directly in point, presenting a collateral attack by heirs on a judgment of separation of property between their ancestors. As in this case, the plaintiff there denied that the community between’ the spouses had been dissolved, and this Court said :

“ We find in the transcript the entire record of a suit instituted in the name of Mrs. Compton against her husband, * * » in which judgment was rendered in her favor on a moneyed demand, and decieéing a dissolution of the community. This judgment was rendered after citation to the husband, was duly published and followed by an execution on which there was a return of nulla bona.' The separation off property purporting to be established by the judgment was subsequently and uniformly recognized by both parties thereto by many acts and proceedings. This recognition is shown by the purchase off property in the name of the wife, * * * in some of which purchases the husband joined to authorize her.” * * *
“ Surely, all these facts must to the legal mind, outweigh the uncertain evidence afforded by the párol testimony of the mother 'of the plaintiffs and one of the plaintiffs themselves, contradictory of that derived from those acts and judicial proceedings, and by which such solemn acts and proceedings of the parties are sought to be overthrown. Under our settled jurisprudence, the effect of authentic acts and judicial proceedings cannot be so easily impaired, nor titles to real estate resulting therefrom, or evidenced thereby, so easily destroyed.” * * *
“ In the face of these acts and proceedings, it would hardly be contended that Thomas A. Compton, if alive, could be listened to in asserting a claim to this property. His heirs, claiming through him, stand in no better condition.”

See, also, Drumm vs. Kleinman, 31 Ann. 124; Stewart vs. Mix, 30 Ann. 1036; Hebert vs. Lege, 29 Ann. 511; Barbet vs. Roth, 16 Ann. 271; Renford vs. Thorn, 15 Ann. 81; Henderson vs. Trousdale, 10 Ann. 548; Wolf vs. Lowry, 10 Ann. 272; Penn vs. Crockett, 7 Ann. 343; Darock vs. Darcey, 6 R. 342.

From our uniform jurisprudence the following rule may be culled-- and must be considered as resting on most solid foundations:

Barring the exception in favor of creditors and forced heirs, touching judgments of separation of property between husbands and wives, the inquiry-on collateral attacks against the validity of . judgments “must be restricted to an examination to ascertain whether the court which rendered the judgment had jurisdiction, and whether it exercised that jurisdiction according to the forms of proceedings established by law. No inquiry can be made as to the correctness of the - judgment upon the merits.” Pasteur et al. vs. Lewis & Lynd, 39 Ann. 5.

Under the effect of principles so well settled m our jurisprudence, it. becomes immaterial, for the purposes of this decision, to determine whether the marriage of February 18, 1869, was null or valid. It is-conceded that there existed a legal marriage between the parties to-the suit for separation of property; hence, there was a community which tlie wife was seeking to dissolve, and that community was dissolved by the judgment of April 24, 1876. Beyond this no inquiry can be made into the judgment, which is valid upon the face of the papers. The validity of the judgment cannot be impaired by the assertion, even if true, in point of fact, that the moneyed judgment in favor of the wife was in amount in excess of what it should have been.

We, therefore, conclude that all the property subsequently earned and purchased by Mrs. Dejan became, and remains to this day, her personal and separate estate, and that plaintiffs’ claim must be rejected.

Having reached those conclusions, we find no warrant for a discussion of numerous other points made in the case and presented with marked ability and great learning by counsel, both in their oral argument and in their briefs.

Judgment affirmed.

Rehearing refused.