author: Breaux, J.

text:
    No. 11,358.
    Succession of Mrs. Julie Couder.
    The son and heir, Emile Couder, sued to annul a clause of the testament of his mother, Julie Couder, in which he is charged with being a debtor to her.
    In the answer of the executor of the mother’s will (the defendant in the suit) the consideration of the indebtedness is alleged, and on the trial the consideration was proved.
    The plaintiff interposed the plea of prescription as a bar to the recovery on the claim thus proved.
    Debts of the heirs, like donations to them by the ancestor from whom they inherit, are subject to collation, and prescription is not a bar to the collation, as running at any time prior to the death of the ancestor from whom they inherit.
    Proscription does not date from a day anterior to the opening of the succession, and the collation is due and exigible. The plea of prescription is overruled and the heir is ordered to collate.
    APPEAL from the Oivil District Court, Parish of Orleans. J.

      .Henry P. Dart Attorney for Heirs of Emile Couder, Plaintiffs and Appellees:
    2. The mother of three children bequeathed her entire estate to two, with the exception of the following bequest to the third, viz.:
    “ I give and bequeath to my son Emile the sum of $200, in addition to the sum of $2B00, which he owes me.”
    The son attacked the will, contending that no debjb ever existed between him* self and his mother; that this is a disguised attempt to disinherit him, or to trespass upon the legitime.
    The legatees and executor were joined as defendants. The former made no appearance, but the executor defended. Upon this point he plead that a real debt had existed, arising out of the son’s theft and embezzlement of money from his mother in 1866, and he prayed judgment tlierefor.

      At this stage the son died, and his heirs made themselves party, and interposed a plea of prescription of one, three, five and. ton years.
    2. The exception was maintained; it is well founded because the debt, as alleged, had its origin in a wicked and malicious tort, committed by the son, and his liability springs from this unlawful act — i. e., from the theft of $2300; and from his breach of trust in failing to account for the other sums referred to. In its origin, it is an offence, and as such is prescribed by one year. (C. C. 3536.) William vs. Greiner. 20 An. 151; Millspaugh vs. New Orleans, 20 An. 323; Wood vs. 'Harispe, 26 An. 511; City vs. The Bank, 31 An. 566; Edwards vs. Turner, 6 Robinson, 384; Knoop vs. Blaffer, 39 An. 27.
    But if not an offence, and if contractual in its origin, it is prescribed by ten years. Southern Insurance Co. vs. Pike, 32 An. 488; Board vs. Trimble, 32 An. 793; McICnight vs. Calhoun, 36 An. 408; C. C. 3544.
    The offence is laid in 1866, the parties died in 1892. It is not pretended that demand was made or promise given during that period.
    The damage which results from a tortious act is not a debt in the eye of the law;, the commission of the offence is not evidence of a promise to repair the injury by yielding damages. Foster vs. Dupre, 5 M. 16.
    A claim for damages ex delicto does not become a debt until established by a Judgment.
    3. Defendant invokes the rule, “ Quce temporalia sunt ad agendum, sunt perpetua ad excepiendum”

    This is unavailing, because the rule is never applied to assist an attack; it is. solely a means of defence. It is an exception growing out of the original demand; to be effectual it must be visceral. Girod Case, 2 An. 547; Boete vs. Dane, 3 An. 145. Thus, a vendor suedfor the price may avail himself by exception of a deficiency in the quantity of the thing, though the action quanli minoris be prescribed, or I may plead by exception the nullity of the contract when suit is brought to enforce it, although the action of nullity be prescribed. 3 N. S, 695, Davenport vs. Fortier; 1N.S 468, Thompson vs. Milburn; 4 N. S. 500, Bushnell vs. Brown; 12 Rob. 198, Marshall vs. R. R.; 12 An, 297, Riddle vs. Krembiehe; 12 An. 164, Lafiton-vs. Doiron; 13 An. 249, Dickson vs. Bell; 14 An, 868, Millaudon Case; 23 An. 68.
    Reconventional demands are not exceptions within the purview of the rule. 2 An. 547, Girod Case; 3 An. 145, Boete vs. Laine.
    Here the alleged debt is set up in reeonvention to destroy a right of inheritance. Our demand does not grow out of the debt; it is not connected with it The decedent acquired no right in her son’s property by reason of the debt he owed her.
    4. The debt cannot be pleaded in compensation, because not equally liquidated and demandable. C. C. 2209. You can not compensate a debt in money against a demand for real estate. Girod Case, 2 An. 547; C. O. 2208.
    You can not plead a prescribed debt in compensation unless both debts existed before prescription set in. This is the test — «oí the time of filing the plea, but the time when the debt originated. C. C. 2208; Millaudon vs. Desseps, 17 An. 246; Rid-dell vs. Gormley, 4 An. 140; Crow ys. Watkins, 12 An. 845; Dickson vs. Bell, 13 An. 249.
    In every case where the exception quce temporalia has been permitted, the defence came into existence with the obligation, or before prescription set in. See 2 Da. 385.

      The relation of debtor and creditor toas not created byJMrs. Couder’s death; that event merely released her usufruct on the community property, and fixed her son’s status as her heir.
    . No question of collation is here presented; that issue is not before the court, and even though it were raised in the pleading (as it is not), the execntor can not establish collation — that right belongs to the heirs. Nevertheless, there should be no difference in the application of the rule, as in principle there is no difference.
    It is settled that the heir can not plead a prescription acquired after the ancestor’s death, but the right to demand a collation of a debt already prescribed when the right of inheritance arose is not settled. See the express statement to that effect, Succession of Skipwitb. 15 An. 207. The Cucullu Case, 9 An. 96, does not touch the point; there the heir had received his share in advance, and covenanted in writing to return it by collation. Prescription was not in the case.
    6, This will is also attacked because it disposes of two specific portions of real .estate in favor of the sisters, to the exclusion of the third heir. The testatrix was not absolute owner of this real property; it was the joint property of herself and her three children, inherited by the latter from their father — the late head of the’community. It seems clear that she can not give the specific property, but only her interest in the same, and the action was properly instituted - to restrict the legacy to that portion, and to reduce the portion as given to the legitime.
    Even were it true, as alleged by the executor, that decedent, who was a widow in community, paid a mortgage debt due by the community upon that property, she did not thereby acquire title to the half interest of her deceased husband’s estate, or exhaust the son’s share therein. The payment is a matter of settlement and adjustment to be made hereafter, in a proper action between the heirs.
    W. B. Murphy Attorney for Testamentary Executor, Appellant:
    EVIDENCE.
    1. Positive testimony on a given point must predominate over negative testimony on the same point. Story vs. Insurance Co., 87 An. 254.
    2. When the testimony of two witnesses is contradictory, the one swearing affirmatively and giving a detail of circumstances will predominate. Brigham vs. Bussey, 26 An. 676.
    3. A fact testified to by a competent witness will be accepted as proved, if there be no evidence to impeach his credibility. Dolhonde vs. Lemaire, 32 An. 251.
    4. The evidence (unimpeached) of a disinterested witness can not be disregarded by the court. Lusse vs. Hays, 22 An. 308; Perez vs. Insurance Co , 28 An. 682.
    5. The testimony of a plaintiff in his own favor against a succession should be received with the greatest caution. It is in itself of the weakest character, and unless strongly corroborated should be disregarded. Cutler vs. Succession of Collins, 37 An. 95.
    PEESCRIPTION.
    1. Prescription as to an act of partition is thirty years. It. C. 0., Art. 1305.
    2. An heir will not be relieved from the obligation of collating a debt due by him to his ancestor on the ground of .prescription. Succession of Skipwitb, 15. An. 209.

      3. The debt of the heir to his ancestor, although prescribed, should be collated. Succession of Bougere, 9 An. 96. Even a discharge under the bankrupt law has been held not to discharge an heir from the obligation of collating. 9 An. 96.

      A. A prescribed debt can be pleaded in compensation. The plea of compensation has a retroactive effect to the time plaintiff and defendant became indebted unto each other; no prescription accrues when the debts existed simultaneously. Millaudon vs. Lesseps, 17 An. 216.
    5. We may use a3 a shield what we can not employ as a weapon. 3 N. S. 659; A N. S. 500; 12 An. 161; 11 An. 86S; 23 An. 68.
   The opinion of the court was delivered by

Breaux, J.

The mother of three children, Mrs. Pierre Couder, bequeathed her estate to two, with the exception of the following .bequest to the third, viz.:

“ I give and bequeath to my son Emile the sum of $200, in addition to the sum of $2300 which he owes me.”

The will is dated 29th of May, 1890.

The testator departed this life on the 17th of June, 1892.

■ In the proceedings before the court the son, Emile, attacked the will, on the ground that no debt was ever due by him to his mother; that the will is an attempt to disinherit him; that the testatrix be•queathed property of which she was not the owner.

The plaintiff prays for judgment against the executor and the legatees, annulling and setting aside the last will of said Mrs. Julie ■Couder, and annulling the probate of the will. And, in the alternative, ¡should the court not consider him entitled to that relief, he prays that the legacies be reduced conformably to the law’s requirement.

The executor of the mother’s succession and the legatees are joined as defendants in the suit.

The executor defends, and he pleads an indebtedness arising, he alleges, out of the son’s (Emile) theft and embezzlement of money from his mother in 1866, amounting to $2525, and for other amounts, aggregating altogether $3974.

The plaintiff, Emile Couder, died shortly after the suit had been instituted. His widow and heirs, after his death, joined as parties plaintiff and prosecute in their names.

The court a qua decreed that the legacies be reduced to the disposable portion, and that the donations mortis causa be subject to adjustment and settlement of the community existing between the late Pierre Couder and the testatrix; that.certain property described in the judgment is part of the community; that the declarations by the testatrix of previous indebtedness of Emile Oouder contained in her will and alleged in tbe reconventional demand filed in the suit is of no effect, being prescribed.

In the rule for a new trial, interposed by the executor, he avers, as grounds for a new trial, that it was affirmatively proved that the amount declared in the will of the late Mrs. Pierre Oouder was justly due by Emile Oouder; and that prescription does not apply in matters of succession among the heirs claiming from their author.

The questions argued by counsel and before us for our determination are whether there was an amount proved as due by the heir, Emile, to the succession of his'mother, and, if proved, whether prescription applies?

The amount of the claim in the motion for a new trial was limited to the sum declared in the will as due by the plaintiff.

We dispose of the claims alleged in the petition for an additional amount with the statement that they are not proved by sufficient evidence to justify a judgment allowing them. Gillespie vs. Day, 19 La. 265.

They consist of alleged collections by plaintiff, not satisfactorily proved. If such collections were made they may have been settled.

The mother, who has carefully charged him with the amount she said was due, is silent as to these additional items. Only one witness testified regarding them.

The records do not disclose any corroborating testimony in this respect. The amount exceeds $500, and can not be considered proved on the uncorrobated testimony of one witness.

With reference to the remainder, the amount charged by the testatrix in her will, his sister testifies that it was taken by her brother Emile.

She did not see him take it, but relates circumstances showing that, the contents of a tin box belonging to the mother was taken by him.

She testifies that it amounted to more than $2000.

She saw the amount counted and placed in the box. It was locked.

A short time after, on the request of the brother, it was handed to him by his mother.

He took it to his room. On its return it no longer contained the amount.

■ Another witness testifies, positively, that the amount thus taken was $2500.

These witnesses testify that the brother, Emile, admitted at the time that he had taken the money.

The declaration of the will is a corroboration that can not be overlooked in the dealing between the mother and son.

Upon that subject, commenting upon similar articles of the Code of Prance it is laid down as a correct principle:

■ La déclaration faite par le pére de famille dans son testament que Pun de ses enfants a regu de lui avant son décés une somme qu’il précise, ne fait pas preuve suffisante que la somme ait été en effet regu de fagon á autoriser les autres enfants á eu exiger le rapport. Basten, 10 Avril, 1854, D. P. 54, 2, 216; Dalloz et Vergé Codes Annotés, Art. 851, No. 23, etc.

No. 24. Cependant une déclaration du pére commun rédigée sous forme des dispositions de derniére volonté et qui contient par notes successives séparément signées de lui les comptes des sommes avancées á chacun de ses enfants, et dont il veut que le rapport soit fait á sa succession pour qu’une égalité régne entre ses enfants quoiqu’elle ne vaille pas comme disposition testamentaire en ce que la premiére note serait seule datée, a été néanmoins déclaré suffisante pour que le juge décidat d’aprés ces notes qu’il est du rapport et en déterminat la quotité, alors surtout qu’il est reconnu que les avances ont été faites et que l’héritier ne prouve pas qu’il soit libéré. Reg. 28 Aout, 1811, J. G. Succ. 1202.

It being abstracted by the son from his mother’s succession it was subject to collation.

The child is bound to collate such amounts. Succession of St. Julien Tournillion, 15 An. 263.

The object of collation is to establish equality among the heirs; each heir has a right to that equality. There would not be equality if an heir were not compelled to collate, and the restitution of an amount taken could not be forced.

The fact that the amount was taken against the will of the owner should make the collation the more imperative.

The heir should collate that which he has taken from his mother, the same as that he should collate sums advanced to him. Dalloz Dictionnaire de Jurisprudence, Title Rapport, Art. 483, No. 204.

To the same effect is Dalloz et Verge Codes Annotés, Art. 851, No. 38. Paris 6 Mai, 1846, D. P. 462, 133.

L’ enfant devant également le rapport de ce qu’il aurait détourné de la maison paternelle si l’objet était de quelque valeur. Ce serait méme une restitution dont il ne se dispenserait pas (en renoncant a la succession du pére). Duranton, T. J. N., 365 D. A., No. 23.

Mais cela ne s’entend, sans doute, remarque fort bien Vageille, Art. 855, No. 8, que soustractions antérieures á l’ouverture de la succession, les autres étant réglées par les Arts. 792 et 801. Dans ce premier cas Vageille accorde bien le premier rapport, mais seulement si le vol a causé une perte assez grande pour obliger le pére a quelque alienation ou ,á des dettes subsistantes, mais la mention ■qu’en porte le pére dans ses papiers ne serait qu’une indication mais non une preuve determinante. Dalloz Dictionaire de Jurisprudence; Art. 483, No. 204; Dalloz et Vergé Codes Annotés, Art. 851, No. 35.

The argument of plaintiff’s counsel is directed principally to the plea of prescription.

The offence, he urges, was laid in 1866 and the parties died in 1892, ■during which time no demand was made for the amount.

An heir had been discharged under the act of Congress entitled “ An act to establish a uniform system of bankruptcy throughout the United States,” approved 19th August, 1841. The provisions of the act extended to all debts of the insolvent existing at the time of the discharge.

The court decided that this did not release the heir from the obligation to collate. It was not within the reach of the bankrupt act. Succession of Mrs. Simon Cucullu on opposition of S. Cucullu, 9 An. 96.

A debt was not prescribed at the date of the opening of a succession. It was held that the opponent in the case was as much bound to account for whatever he owed at the time, as he would be for a movable which he had received or taken possession of belonging to the succession.” “If,” adds the court, prescription.of debts previous to the death of the ancestor can relieve the heir (the debtor) from collating (upon which we express no opinion), it can not have that effect after the succession has once been opened.” Succession ■of Skipwith, 15 An. 211.

Laurent Droit Civil Franeais, Vol. 10, p. 650, propounds the question When begins the prescription of the action to compel collation? It has been decided, says that commentator, that there is no prescription possible during the existence of the donor, for evident reasons, since the obligation to collate dates only from the date of heirship; that is, prescription runs from the date of the death of the donor.

Collation is an incident of the operation of partition; it can not be separately subjected to prescription without holding that the action of partition may be partially extinguished, in so far as relates to collation, though in full force and effect in so far as relates to a distri-bution of the property. This would be contradictory, for of properties to be distributed are the donations to the heirs that are subject to collation; therefore, during the time that the action for a partition lies, the action “ en rapport” is inextinguished. Eadern sensu is Fuzier Hermann, Vol. 2, p. 255.

Marcadé, upon the subject, adds: A verbal criticism of no importance, in so far as relates to prescription: that accounting for the debt is not a “ rapport ” of the debt to the mass of the succession, but a payment: that it follows logically and naturally that the settlement by deducting from the portion of the heir is a payment and’ not a “ rapport ” to the succession.

This distinction between the “rapport” of donation and the payment of an advance by the heir in the settlement of a succession plays a part in the matter of the renunciation of a succession by the-heir, but none in so far as relates to prescription. In the kindness of her heart the mother treated the amount, in her will, as an “ advance,” although it had been unlawfully taken from her.

The heir, the commentator states, must be held for the payment* of debts, although he has renounced the succession, thus differencing debts from “donations” in collations.

The French authorities hold that the obligation is not prescriptible during the existenceof “the ancestor” from whom the indebted heir-inherits.

The jurisprudence of this court, upon the subject, is not different..

Such claims have never been held prescribed in this State.

Donations and advances constitute part of the active mass of the succession for partition and are therefore not subject to prescription before the death of the ancestor by whom it is left.

The allegation that the testatrix has included property in her legacies of which she is not the owner in her absolute right is sustained by the proof.

The records disclose that the real estate described as numbers 150 and 152 Orleans, and 176 and 176 1-2 Robertson street, is property of the community lately existing between Pierre Couder and wife, deceased.

The judgment appealed from decrees that it is property of the community.

It is therefore ordered, adjudged and decreed that plaintiff’s demands against the defendant to annul and set aside the last will of Mrs. Julie Couder, and to annul and set aside the probate of the will, be rejected.

A judgment is rendered against plaintiff and in favor of the succession of Julie Couder for the sum of $2300 as charged in the will of the testatrix, Julie Couder.

That in the partition, the legacies be restricted to the disposable portion of decedent’s interest in the property bequeathed.

To the extent of the foregoing decree, the judgment appealed from is annulled, avoided and reversed.

In so far only as the judgment appealed from decrees that the real estate before described forms part of the community, it is decreed that it is affirmed at appellee’s costs.


source: Caselaw Access Project

license: Public Domain

text:
    No. 11,430.
    Philip Dave vs. Morgan’s Louisiana & Texas Railroad and Steamship Company.
    On the hearing of an exception to the jurisdiction of the court, it appears by the allegations, taken as true for the exception, that the defendant company carried the plaintiff, a passenger, beyond his point of destination; that he was forcibly put off at a point at which there was no station;
    The wrongful act was, if truly alleged, a trespass, actionable in the parish in which the passenger was thus ejected.
    APPEAL from the Eighteenth District Court, Parish of Lafourche. Caillouet, J.

      Beattie & Beattie Attorneys for Plaintiff and Appellant:
    Where a railroad carries'a passenger beyond his point of destination, not stopping at that point, but stopping beyond, a mile or more, and then ejects him from the train, in the night, in the rain and in an uninhabited place, this is sucli a trespass or wrongful act as gives jurisdiction to the court of the parish where the act is committed. C. P., Art. 165, Sec. 9; 33 An. 955.
    Ejection from a train by the railroad officials at a point different from that of destination is an act of commission and gives rise to damages. 13 Southern Reporter, Vol. 13, No/ 3, p. 166; -Randall vs. New Orleans & Northeastern Railroad Company, 45 An. p. 778.

      Olay Knoblook & Son and Leovy & Blair Attorneys for Defendant and Appellee:
    The defendant company is exempted by its legislative charter from being sued elsewhere than]at its domicile in New Orleans, except in cases of trespass. Acts of 1877, No. 37, Sec. 12.
    A case of trespass is one based on some forcible act committed vi et armis on the person or property of the plaintiff. Actions ex contractu, express or implied, and actions ex delicto founded on negligence are not cases of trespass within the meaningof Sec. l2of defendant’s charter. Heirs of Gossin vs. Williams and Morgan’s R. R. Co., 36 An. 186; St. Julien vs. Morgan’s R. R. Co., 39 An. 1063;
    Payne vs. Morgan’s R. R. Co., 43 An. 981; and references in the cited cases.

      *l The allegation that the plaintiff has been damaged does not determine the question, for damages result as well from the violation of contract, either expressed or implied, as from the commission of offences or quasi offences. Nor will the casual and ancillary averments of illegality, wrong, and even violence, conclude the plaintiff as t > the character of his action, unless it should appear, from afair examination of his whole petition, that an alleged tort forms the gist of his complaint.” Kohn vs. Mayor of Carrollton, 10 An. 720; Brigham vs. Bussey, 26 An. 676; Montgomery vs. Levee Co., 30 An. 609.
    Plaintiff’s action is essentially based on the contractual relations existing between him and defendant. It is founded on an alleged breach of a contract of carriage. Hutchinson on- Carriers. 2d Ed., Secs. 568, 617. See Evansville R. Co. vs. Ifyte, 32 Northeastern Rep. 1134, quoted in brief, where an action, identical in all essentials with plaintiff’s, was held to to be an action ex contractu.

    Even if plaintiff’s action be one éx delicto, it is founded on the negligent failure of the engineer and conductor to stop at the place where the company had contracted to carry him. It is, therefore, not a case of trespass as defined by this court in the cases cited above.
   The opinion of the court was delivered by

Breaux, J.

This is an action sounding in damages. For the purpose of the trial of the exception interposed to the jurisdiction of the court the following is taken as true:

That on November 26, 1893, the plaintiff bought a railroad ticket from the defendant company, entitling him to a first-class passage from Lafourche Crossing to Rousseau station on the road. That arriving at the station in the dark he could not distinguish it as his stopping place.

That the train passed the station and went beyond, about one mile, before stopping, not having stopped at the station.

The train having stopped, he was ordered “ in a very peremptory and insulting manner to get off;” did get off the train when it thus «topped, a mile or more beyond Rousseau station, in obedience to said peremptory orders; whereupon the train moved off and petitioner found that he was not at Rousseau station, but about a mile ■beyond, where there was no station.

That at the time he was put off it was raining very hard and there was no shelter at that point, and that by this malicious, wanton and forcible act of ejecting petitioner he was forced to walk back to Rousseau station, his original point of destination, feeling and finding his way as best he could in the dark and rain.

That the orders to him to get off the train were given by an employs of the defendant company.

The petitioner alleges a disregard of his rights and feelings, and ■claims damages.

The defendant filed an exception of want of jurisdiction, that under its charter it was exempted from suit elsewhere than at its domicile, except in cases of trespass, and that plaintiff’s suit was not an action of trespass.

From a judgment sustaining this' defence and dismissing the suit, plaintiff has appealed.

Section 12 of the defendant’s charter reads as follows:

“ The domicile of the company shall be in the city of New Orleans, and citation shall be served there on the president of'the company, or, in his absence, on the secretary; and the company shall be sued •only at its domicile, except in actions of trespass, when the company may be sued in the parish in which the trespass has taken place.”

In determining the rights of the parties under the allegations made, the court considers only the constituent principles of the action and not mere inferences from them on the part of the pleader.

The question is one of trespass vel non. Unless the action is for trespass committed, the court was without jurisdiction.

Trespass, even inlaw, has a broad and comprehensive meaning.

It is defined by Blackstone, as follows: “Trespass in the most extensive sense signifies any transgression or offence against the law of society, or of the country in which we live, whether it relates to a man’s person or his property; therefore, beating another is a trespass, taking or detaining a man’s goods are, respectively, trespasses, for which an action of trespass- vi et arinis7 or on the cases in trover and conversions, is given by the law; so also non-performance of promises or undertaking is a trespass, upon which an action of trespass on the case in assumpsit is grounded; and in general any misfeasance or act of one man, whereby another is injuriously treated or damnified, is a transgression or trespass in its largest sense.”

In its more restricted sense it is defined as an unlawful act committed with violence, or injury committed with violence to the person of another. Ejecting the passenger in the manner he was-ejected, if the allegation be true, was an injury.

There was negligence in not offering him the opportunity to alight at the place of destination.

Having taken him past such station without his consent, and without being allowed a reasonable opportunity to leave the train, he has a right of action for damages that may have accrued to him.

They are not damages arising under a contract, such as are classed as ex contractu. They do not arise from the inexecution of an obligation, or a mere violation of the terms of the agreement in the-execution.

Originally the parties may be bound under a contract and their rights decided by reference to it.

The parties may remove from the obligations of the contract entirely and torts may and frequently do occur independently of the contract.

It may be founded upon or grow out of some violation of a right created or secured by contract.

The injury, in the case at bar, includes the expulsion from the train, and in consequence, as alleged, was more of an injury than there was in the following cited cases:

“And it has been said that the liability of a passenger carrier for not stopping at a certain place and taking passengers according to public announcements made known through the public prints or in writing is one founded upon a tortious violation of a general duty, and not upon any breach of special contract.” Redfield on the Law of Railways, p. 298, 6 Ed.

In another case wherein the facts were almost identical, the decision was that “ in such cases the passenger would be entitled to recover damages for the injury, because the railway company has committed a flagrant breach of duty.”

The rule volunti non fit injuria will not apply so that it may be held that the passenger by not offering resistance precluded himself from the possibility of truly alleging that he had been violently ejected.

In trespass upon lands, or real estate, any entering into the enclosure of another without his consent is, in law, a breaking into it, and force is implied in all actions of trespass of this kind.

In trespass, arising from injury to the person, any force, however slight it may be, in the commission of an unlawful act may be sufficient to constitute the offence.

Considering the petition in its entirety, without regard, however, to possible inferences or conclusions, it does not appear that plaintiff’s act in alighting was voluntary.

Ordinarily no passenger insultingly ordered to alight, while the train is stopped awaiting until he gets out, would be willing to remain in the car. Alighting under those circumstances can not be considered as precluding the passenger from maintaining an action for damages arising from trespass on his rights.

Trespass grows out of the consequence of the illegal act and force to which the injured party has been subjected.

The question of the cause of action is not before us, and is not considered, in reaching our conclusion.

The defendant having, for the exception, admitted the truth of plaintiff’s allegation, we conclude that the plaintiff was compelled to leave the train and that he was rudely ejected.

If, under similar circumstances, a passenger had broken one of his limbs, or if some other serious accident had happened to him, without negligence on his part, the trespass would be manifest.

That no accident happened does not change the character of the forcible ejectment from a trespass to a violation of contract.

We do not enlarge the interpreted law laid down in Heirs of Gos-sin vs. Morgan Co., 36 An. 186. The design and effect of Sec. 12 remains as defined in that decision.

We hold that forcible ejectment without cause, from a train, is trespass, and actionable in the parish in which it occurred.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled and set aside, that the case be remanded and reinstated by the District Oourt for trial, and duly tried.

Defendant and appellee to pay costs of appeal.


author: Miller, J.

text:
    No. 11,444.
    Lem Scott, Sheriff, etc., vs. the President of the Police Jury of Richland et al.
    The inspection, and examination of the books and papers of a public office may be claimed on application for a mandamus by those who, by reason of their official position, have an interest in that examination.
    In view of the relations of the sheriff as the collector of parish taxes and licenses* and that he is required to settle for his collections with the parish treasurer, who settles with the jury, the police jury must be deemed to have an interest in the examination of the sheriff’s books and papers whenever the information to be elicited becomes necessary for settlement of the jury with the parish treasurer or for other purposes within the scope of the duties of the jury. 1 Greenleaf on Evidence, pp. 471, 473.
    ^PPLICATION for Certiorari and Prohibition.

      Wells & Wells and Boatner & Lamlein Attorneys for Relator:
    The District Court was without jurisdiction rations waterice to issue a mandamus to the sheriff and ex-officio tax collector, on an application by a president and two members of a police jury who had been appointed a committee with specified power simply to employ an expert and to examiue the books, records and accounts of the said oillcer.
    That no suit nor judicial proceeding of any kind can be instituted on behalf of a police jury except through the district attorney.

      Gunby & Sholars Attorneys for Respondents:
    District judges can issue the writ of mandamus in cases where no moneyed demand is made, but where public interests are involved. Custodian, etc., vs. Theard, 45 An. 681,
    In exercising its rights to issue writs under its supervisory powers, the Supreme Court will not transform itself into a court of appeal to reverse the rulings of the inferior court. 35 An. 365.
   The opinion of the court was delivered by

Miller, J.

The relator invokes the exercise of the supervisory jurisdiction vested in this court by the Art. 90 of the State Constitution. The proceedings sought to be reviewed were in the Sixth Judicial District Court, parish of Richland. That court made peremptory a mandamus, directing the relator to submit books, papers and documents pertaining to his office as sheriff and ex-officio tax-collector, for examination by a committee appointed by the police jury of the parish, or by the expert selected by the committee. It is claimed on behalf of the police jury and their committee that the examination proposed is to obtain information necessary for the performance of the functions of the jury. The relator bere, in his petition, further avers, and in his answer and exceptions in the lower court substantially urges, that the books, except the cash book, showing the parish taxes collected are not public, but his private property •, that the current tax rolls, the list of delinquent tax-payers and other books and papers he enumerates are of daily use in the office for its business, and as to his vouchers, which he supposes are demanded, he insists he can not be called upon to surrender them. Besides these grounds on which he contests the mandamus, he insists that the committee appointed by the jury, on whose applications the mandamus issued, had no authority to institute the suit or stand in judgment for the jury, that the district attorney should have sued if there was any basis for the suit, and that the petition sets forth no interest in those who applied for the mandamus, or any thing or object within the jurisdiction of the court.

Courts are sometimes called on to enforce rights not' susceptible of estimation in money. It is fortunate for the good order of society that the judicial function in that class of controversies are not dependent on the test of the amount involved, applied in other suits that come before the court. State Constitution, Art. 11; State ex rel. Mayor vs. Judge, 85 An. 637; State ex rel. Garland vs. Theard, 45 An. 681. The contention of the relator substantially is, that the committee of the police jury had nó interest to sue for the mandamus, and there is no subject of suit — i. e., of which a court can take cognizance.

The sheriff is the tax collector for the parish, and accounts to the parish treasurer. The police jury is charged with the levy of the parish taxes; the disbursement of the taxes when collected, the appointment of the parish treasurer, and it is with the police jury the parish treasurer effects his settlements. It is advanced on the part of the police jury that the information sought to be obtained from the sheriff’s books and the papers of his office was important and necessary for the performance of the duties of the jury. There is testimony in the record with reference to settlements with the parish treasurer. It is in evidence that there was no final settlement with the ex-parish treasurer. From the language of the ordinances of the jury appointing the committee to examine the sheriff’s books, as well as from the testimony, it is the fair conclusion, as is stated in the briefs for the parish committee, that the information to be desired from the sheriff’s books and papers is requisite for the adjustment of the accounts of the treasurer. The court can not assume the information is sought by the jury from improper motives. The presumption arising from the action of a public body clothed with important duties, is that it passed the ordinances calling for this examination with a view of obtaining assistance in the performance of public duty. The police jury in view of their relation to the parish treasurer, and those between the parish treasurer and the sheriff, has an interest in the examination of the official books and papers pertaining to the sheriff’s office. That interest we think sufficient to entitle the committee to demand the mandamus to compel the exhibition of such books and papers for examination. 1 Greenleaf, 471-473.

While the right of inspection of official records is to be conceded to those having the requisite interest in the subject, it must be executed with due regard to the public interest and the rights of the sheriff. The ordinances of the jury required him to deliver his official books and papers to the committee. This he declined to do.

The order of the lower court, making peremptory the mandamus, is that he submit his books for examination. To submit his books for examination to be conducted at his office, and within reasonable hours, will not interfere with conducting the business of the office. This is all we presume the mandamus requires — or should be exacted. The mandamus affirms only the right of inspection and examination of the books of a public office, by those having the legal interest.

It is therefore ordered, adjudged and decreed that the application in this court for the writs be refused.


text:
    No. 11,437.
    Henriette Gughlielhmi vs. Louis Geismar.
    The plaintiff in a suit via ezeoativa, having been enjoined, on the ground that there was a deficiency in the measurement of the land sold by her, interposed the plea of no cause of action.
    She has not thereby waived any of her rights to answer and to trial on the merits.

      In the interpretation of the descriptive words of deeds and grants, fixed monuments, whether they be natural or artificial, govern.
    The issues having been tried on an exception admitting the truth of the allegations, the exception is overruled and the case remanded for trial on the merits, in order that the permanent character and correctness vel non of the metes and bounds given in the deed may be ascertained.
    APPEAL from the Twentieth Judicial District Court, Parish of Ascension. Guión, J.

      JR. H. Sims, II. Heidenhain and Dinkelspiel & Hart Attorneys for Plaintiff and Appellee:
    1. The defendant, by authentic act, passed on the |18th of February, 1891, purchased: All and singular that certain tract or parcel of land, together with the improvements thereon * * * situate in the parish of Ascension * * * known or designated as the “ Waterloo plantation,” having a front of about three-fourths of a mile on the Mississippi river, containing about 1800 superficial acres, more or less, and being bounded above and in the rear by the Riverside plantation * * * and below by what is known as the New River road, which separates it from the Mt. Houmas plantation; which said plantation is more specifically described as being composed of sections 9 and 10, 47, 48 and 30 and a tract of 172 67-100 acres in the rear of section 47.
    This was clearly a sale^er aversionem. The sale was of the “ Waterloo plantation,” embraced between “ adjoining tenements ” and well defined boundaries. The defendant did not buy certain distinct sections as limited bodies of land with fixed measurements. These sections are referred to merely by way of description, and their designation is controlled by the general designation which precedes it in the act, of the land in bulk, known as Waterloo plantation, and as being contained within fixed ^boundaries. 0.0.854,2495; 14 La. 497; 7 La. 452; 5 N. S. 238; 3 La. 91; 19 La. 422; 2 La. 499; 16 La. 185; 5 La. 239; 4 La 534; 43 An. 942.
    The defendant therefore is not entitled to claim diminution of the pried on account of an alleged deficiency in quantity of the land within the said designated limits of the plantation. Same authorities.

      James L. Bradford and Edward N. Pugh Attorneys for Defendant and Appellant;
    1. A sale of a certain plantation, in which the land is first described as situated on the Mississippi river, containing “ about 1800 acres, more or less,” with designation of a certain other plantation as bounding it above and in the rear, and a certain road or lane below, which general description is then followed by a particular description, in which it is described “more specifically,” as composed of certain sections, townships and ranges, is not a sale per aversionem, but one of specific tracts, in which, if there is less land, by one-twentieth, than that called for in the deed, the vendee is entitled to a proportionate diminution of the price. Milliken vs. Minnis, 12 La., O. S. 539; hoover vs. Richards, 1 Rob. 34; Phelps vs. Wilson, 16 La., O. S. 185; Craigin vs. Powell, 128 U. S. 696; 3 Wash. Real Prop. 5th Ed. 409, 422, 425, 426, 430.

      2, In such a sale, even if it be held to be one per averslonem, if the vendor had no title and no possession to parts of the specific sections described, and those parts exceed one-twentieth of the quantity called for in the deed, whether that quantity be controlled'by the general call for “ 1800 acres, more or less,” or by the aggregate areas of all the particular sections, in either event the vendee is evicted from such parts and is entitled to a restitution or diminution, and to damages resulting from the eviction. R. C. C. 2506, 2514, 2500; 1 Rob. 362; 11 Rob. 397; 13 An. 390; 14 An. 716.
   The opinion of the court was delivered by

Breaux, J.

This action is based upon an alleged deficiency of a quantity of land sold.

The price was $20,000, of which $7000 have been paid.

The plaintiff, as transferee of the notes representing the purchase price, sued out executory process on one of the notes due and owing, also for interest and 5 per cent, attorney’s fee, stipulated in the deed of sale, and prays that the property be sold for cash to pay the note matured, also the interest fee and costs, and for the balance of price on terms of credit corresponding with the remaining notes unpaid.

The following is a description of the property sold:

“All and singular that certain tractor parcel of land, together with the improvements thereon and all rights, ways, privileges and appurtenances thereto belonging or in anywise appertaining, situate in the parish of Ascension, in this State, on the east or left bank of the Mississippi river, about eighty-seven miles above the city of New Orleans, known or designated as the ‘ Waterloo plantation;’ having a frcmt of about three-quarters of a mile on the Mississippi river, containing about 1800 superficial acres, more or less, and being bounded above and in the rear by the ‘ Riverside plantation,’ now or formerly belonging to E. I. Mansfield, and below by what is known as the New Riper road, which separates it from the Mount Houmas plantation; which said ‘Waterloo plantation ’ is more specifically described as being of sections 9 and 10 in township 10 south, range 2 east, and sections 47, 48 and 80 in township 9 south, range 2 east, and a tract of 172 67-100 acres, in the rear of said section 47, with the exception and reservation of that portion of said plantation previously conveyed to the Louisville, New Orleans & Texas Railway Company, for a right of way and depot grounds.”

The defendant sued out an injunction and claims a deficiency in measurement of 468 70-100 acres, and prays for a proportionate restitution of the purchase price.

He alleges in his petition for an injunction that plaintiff in the executory proceedings is not the owner of the notes sued on, but that she holds them for account of his vendor.

The act of sale is specially referred to in the petition for injunction, and the fact that it contains the usual clauses of warranty.

It is also averred [that some of the land sold by the plaintiff to Geismar is public land, and that some of it belongs and is in the possession of other persons.

The plaintiff in executory process, Henrietta Gughlielhmi, and defendant in injunction, interposed the plea of no right of action, on the ground that it was a sale per aversionem embraced between well defined boundaries.

The case was heard [on the issues thus presented, and judgment was pronounced for the plaintiff, Henrietta Gughlielhmi.

The defendant in executory process, Louis Geismar, prosecutes this appeal.

A point for decision comes up preliminarily.

The plaintiff did not call on the defendant to prove, in a summary manner, before the judge, the truth of the facts alleged in his injunction.

She did not choose to follow this mode of defence as laid down in the Oode of Practice, but instead relied upon the exception of no cause of action, and thereby for the purpose of the exception the allegations of the petition are taken as true.

The fact that plaintiff might have accepted the issues as presented after the injunction was filed, and might have considered the injunction as an answer and could have proceeded to the trial without further pleading; and the fact that she might have filed such a plea as would have compelled his opponent to prove the verity of the allegations of his petition for the injunction, are not a waiver of the rights of trial on the merits in case of the overruling of the exception of no cause of action. Wood vs. Henderson, 2 An. 220; Johnson vs. Hickley, 4 La. 285; Fletcher vs. Dauber, 21 An. 151; State vs. Booth, 28 An. 726; State ex rel. Negrotto vs. Judges, 45 An. 1437.

This brings us to a consideration of the exception itself and to a determination of the question, whether there was a cause of action.

If the sale was a sale per aversionem and the title, as the issues are made, is valid to all lands within the boundaries and there was •no error regarding the boundaries themselves, the exception was properly maintained by the court a qua. The decisions uniformly are that calls in a deed fixing the boundaries of the land conveyed by lands of adjacent owners will control when these boundaries are well defined, and that where the metes and bounds are given by the deed, and the quantity of a tract of land, the former, if they are well established, will prevail, although there is a deficiency in the number of acres.

In other words, if there be error as to quantity, but none as to boundary, the purchaser can not claim on account of diminution in the number of acres in the absence of all attempts at concealment and fraud.

The rule applies with equal force to divisions into townships, sections and subdivisions of sections, when preceded by a description •of property by metes and bounds.

This.might be illustrated in various ways:

Following, for the purpose of example, the rule of construction that the elements of description will be followed, as to which there is the least likelihood of mistake.

Let us suppose that land is sold by metes and bounds, the front boundary being the Mississippi river and the other boundaries being, if possible, equally as monumental.

Sections on the water course, sold as entire sections, although fractional, would not control.

The description fronting on the Mississippi river would control the area without regard to a superadded section as part of the description.

In Milliken vs. Minnis, 12 L. 543, the sale was not by boundary.

The inference is inevitable, if it had been a sale by metes and bounds, they would have governed.

In that case the land was on the Mississippi river, with a front of about three-quarters of a mile.

The front line extended to a fence and followed the fence to the rear, and beyond the same, containing 640 acres, more or less, being four quarter sections, as surveyed by Maxfield,. Ludlow, etc.

The court says.: “ In seeking for the intention of the parties the ■whole contract must be examined, and if possible effect given to every part. The expressions being four quarter sections as surveyed by Maxfield, Ludlow, etc., form an important part of the designation of the land surveyed, and can not be overlooked.

“If there had been no other description of the land it would have been sufficient to convey the four quarter sections, for which patents were afterward obtained by the defendant.

“ There is no difficulty about the lane which forms the lower line. The dispute appears to have arisen from the vague manner in which the upper boundary has been described as running on a fence and beyond it, without saying either in what direction or to what distance. We are of opinion that a reference in the contract to the survey of Ludlow must control the vague and indefinite description of boundaries in other clauses of the contract.1’ (The last italics are ours.)

The boundaries were vague and indefinite, therefore other data controlled in locating the tract of land.

In Kirkpatrick vs. McMillen et al., 14 La. 497, the reference to the plan and boundaries of the streets governed, and not the lots as numbered and the measure as given.

We have not found a case in which it was held that the established well known boundary lines of the four sides of a tract of land shall not control the location in a bona fide sale of land thus bounded.

Courses, distances, admeasurements and ideal lines upon the. ground yield to known and fixed measurements, whether natural or artificial.

These being the governing principles they must control the issues in the case at bar.

The allegations being admitted as true the plaintiff is, at this time, in the attitude of having admitted, for the purpose of the exception, that a small portion of the land in question is public land, and that some of the land is in the possession of the owner of Riverside plantation.

These issues demand hearing and further consideration.

The ruling regarding the exception is therefore annulled, that it may be ascertained how much if any of the land in question is public land, and that the dividing lines between Waterloo plantation and. Riverside plantation may,- if possible, bp established in accordance with the calls of the deed, that read as follows, viz.: “Above and in the rear of Riverside plantation,” and thereby include within correct boundaries all lands forming part of Waterloo plantation.

It is ordered, adjudged and decreed that the judgment appealed' from be annulled and set aside, that the case be reinstated for trial and that same be heard on the merits, in accordance with the views above expressed. The case is therefore remanded to the District Court.

Appellee to pay costs of appeal.


author: Watkins, J.

text:
    No. 11,467.
    Samuel G. N. Gates vs. H. B. Gaither et al.
    An act executed in the State of Michigan, between citizens of that State, and which, by the parties to the contract, is intended to operate as a mortgage on real estate situated in the State of Louisiana, same will be given effect as a conventional mortgage, affecting third persons after due inscription.
    In case an absentee is sought to be reached and affected by a decree appertaining to real estate situate here, the appointment of a curator ad hoc to represent him is jurisdictional, and the modus operandi of appointment must closely conform to the Constitution and law, on the pain of nullity.
    APPEAL from the Eighth District Court, parish of Concordia. Boatner, J. ad hoc.
    Lazerus, Moore & Luce Attorneys for Defendants and Appellees:
    1.A common law mortgage, executed in a common law State, between parties residing therein, will not be given the effect of a Louisiana mortgage against third persons. C. C. 3278, 3283, 3287, 3288, 3290; 34 An. 796, 38 An. 890; 40 An. 323.
    2.A common law deed will likewise not be given such effect. Same authorities.
    3.A seizure under an attachment having been made prior to the recordation of the alleged common law deed, prevails against the deed.
    ■4. A common law mortgage will not have the effect of preventing a valid adjudication by the sheriff, even thotigh the price bid is not sufficient to discharge said common law mortgage. C. P. 679, 683, 684.

      C. L. Collins and Young & Young Attorneys for Plaintiff and Appellant :
    1. Notice to a party defendant by service on a curator ad hoc is a constructive service, in lieu of personal service, and the laws authorizing such service must be strictly followed. 10 M. 474; 6 R. 148; 8 An. 365; 9 An. 233; Am. and Eng. Encyc. of Law, Vol. 16, p. 817.
    2. Sec. 6 of Act No. 43 of 1882 specifies that in all cases in which the clerk is empowered by this act to grant orders in case of the absence of the judge from the parish, or his recusation, the oath of the party or his attorney must be annexed to the petition or application. A judgment founded on a service on a curator ad hoc appointed by the clerk, without such affidavit, is null and void* 12 R. 542; 33 An. 76.

      3. A judgment by default entered and confirmed without showing that the curator ad hoc accepted the appointment, or made an appearance in the suit, is a nullity. 2 An. 446. A judgment which is itself the object of attack for nullity can not be pleaded as res judicata in bar of such action. 34 An. 813; 32 An 15; 29 An, 557; 42 An. 1074; American and English Encyclopedia of Law, Vol. 21,134.
    4. A judgment against a party not legally cited is null, though the formalities of law have been complied with, unless tli® party was present in the parish and suffered the judgment to be executed, C. P. 612,
    5. The form of a contract must be governed by the laws and usages of the place where it is passed. C. C., Art. 10; 38 An. 893.
    6. It is elementary that courts of justice are bound to give effect to contracts according to their true intent and meaning. The character of a contract is to be found in the object the parties sought to accomplish father than in the appellation they have given it. We are to look at the substance and essence of contracts, rather than to their form. Tete vs. Lanaux, 45 An. p. 1343; 14 So. Rep. 243; 5 N. S. 161; 3 An 303; 10 La. 243.
    7. A common law mortgage executed in a common law State between resident citizens of that State is in the nature of a pignorative contract, by which a quasi-bypothecary right is conferred. It is recognized by the jurisprudence of this State as a contract of security, and may be enforced in a proper proceeding and showing for specific performance. Howe vs. Austin, 40 An. 323; Howe vs. Powell, 40 An. 307; 38 An. 890; 12 An. 489.
    ■8. A debtor may validly convey his immovable property in the form of a sale, in order to secure the creditor. The continued possession by the creditor does not make the transaction void. Though in the form of a sale the conveyance does not vest the ownership in the creditor, but may give him a right to be paid out of its proceeds by priority. 31 An. 354; 1 N. S. 418; 2 1ST. S. 22; 14 An. 560; 5 An. 97; 8 La. 308; 10 La. 2¿7 ;1N.S. 823; 38 An. 154; 44 An. 925.
    ■9. The setting aside, for any cause, of the sale of an immovable made by a debtor to his creditor, who had a mortgage on the immovable, will not impair any legal rights on the property which the creditor had in virtue of his mortgage. The purchase of land cannot have the effect of destroying the mortgage unless the title passes. 30 An. 1307, 1309; 8 An. 462; 13 An 601; 14 An. 590; 2 La, 551.
    10. If the price offered by the highest and last bidder is not sufficient to discharge the mortgages existing on the property, and which have a preference over the judgment creditor, there shall be no ad Judication. O. P., Art. 684.
   The opinion of the court was delivered by

Watkins, J.

The co- defendant, Gaither, was originally the owner -of the Criton plantation*- He sold to another co-defendant, Washington, one-half interest, and to another co-defendant, Caskey, the remaining half interest. Subsequently Washington sold one-fourth interest to Caskey — he thus becoming three-fourths owner and Washington one-fourth owner.

Caskey executed to the plaintiff in Michigan, where both parties resided at the time, a common law mortgage upon his three-fourths interest, which was recorded on the 10th of March,- 1891* Subsequently he executed to the plaintiff an act of sale to his three-fourth» interest, which was recorded on the 26th of December, 1891.

Intermediately between said mortgage and sale — on the 29th of September, 1891 — Gaither instituted suit against Caskey to revoke the sale of one-half interest in the land for the non-payment of the purchase price and to recover damages for the violation of his contract, and caused to be attached the one-fourth interest Caskey had purchased from Washington. Judgment was rendered dissolving the sale and sustaining attachment, and the amount of $600 damages was allowed. Subsequently this one-fourth was sold under ft. fa. and adjudicated to Gaither — he thus becoming invested again with three-fourths of the property and Washington remaining the owner of one-fourth. In partition suit between Washington and Gaither, there was a judgment ordering partition to be made by licitation of the Criton plantation, but no sale was made thereunder.

The following are the objects of this suit, to-wit:

First — The annulment of the sale of the one-fourth interest of Caskey in the Criton plantation made under attachment and fi. fa. in the suit of Gaither vs. Caskey.

Second — To obtain judgment against Caskey for $7000, and enforce against the Caskey one-fourth interest in the plantation that he acquired from Washington plaintiff’s common law mortgage of March 10, 1891.

Third — The annulment of the judgment of partition in suit of Washington vs. Gaither et als.

On the trial there was a general judgment against the plaintiff and he has appealed.

I.

The averments of the petition in respect to the nullity of the judgment and sale in Gaither vs. Caskey are, 1. that said Michigan mortgage at common law has the legal effect of mortgage in Louisiana, and as such, same was in operation on the one-fourth interest in the Criton plantation prior to its attachment and sale; and that as said mortgage was given to secure the payment of $7000, said sale and adjudication are null, for the reason that the price of sale was insufficient to discharge the aforesaid mortgage having a preference over the attachment and sale of the judgment creditor. 2. That if said Michigan instruments are given effect as a sale of the property, then the attachment and sale were made of the property of another.

Gaither and Washington make common cause and unite in one answer, and they aver that “the common law mortgage and deed upon which the plaintiff sues and bases his demand has not the effect of a mortgage in Louisiana, nor the effect of a conveyance of real estate affecting third parties.”

In the alternative they aver that if same ever existed it “ was extinguished by payment or confusion, or by the alleged common law deed;” but this allegation is supplemented by the additional one, that if said deed was executed in alleged satisfaction of the aforesaid mortgage, same having been filed subsequent to the attachment of the property, it was without legal effect as a conveyance under the laws of Louisiana, and did not oust or divest their title derived through previous attachment and sale.

They also plead the proceedings and judgment in the partition suit of Washington vs. Gaither et ais. as res adjudieata and as an estoppel.

On this statement it is clear that the gravamen of the controversy is the common law mortgage, and it must he determined by the legal effect that is to be given to it under the jurisprudence of this court —the deed not being recorded as a conveyance prior to the attachment it is without effect, and may consequently be omitted from the discussion. This is apparently conceded by both parties.

While noting the defendant’s counsel contention in brief, to the effect that while this deed unrecorded "did not affect defendant’s title, it extinguished any rights Gates had under his mortgage and released its grasp upon the property, we think it quite clear that it is unfounded in law — the legal effect of an avoidance of the sale being the revival of the mortgage, which formed its consideration. Chaffe vs. Morgan, 30 An. 1307, and authorities cited; American and English Encyclopedia of Law, Vol. 15, p. 319; Cooper vs. Bigly, 13 Michigan, 463; Tower vs Divine, 39 Michigan, 443.

With reference to the main question, the precept of our law is that “ the form and effect of public and private written instruments are governed by the laws and usages of the place where they are passed or executed.

“ But the effect of. acts passed in one country to have effect in another country is regulated by the laws of the country where such acts are to have effect.” R. C. C. 10.

We have, therefore, in the present discussion, first, to determine whether the form and effect of the instrument in question, under the law and jurisprudence of Michigan, is such as to constitute same a mortgage at common law; and second, if same is in effect a mortgage in the State of Michigan, what effect is to be given it in this State, where, by its terms, same was to have effect.

The following are the recitals of the act, viz.:

“ This indenture, made this twenty-fourth day of February, in the year 1891, between Joseph O. Caskey, of the city of Saginaw, in the county of Saginaw and State of Michigan, party of the first part, and Samuel G. M. Gates, of Bay City, Bay county, State of Michigan, party of the second part,

“ Witnesseth, That the said first party, in consideration of seven thousand (7000) dollars to him paid by the second party, the receipt whereof is hereby acknowledged, has granted, sold and conveyed, and by these presents does grant, sell and convey unto the said second party and to his -heirs and assigns forever, an equal undivided three-fourths interest in and to that parcel of land known as the Criton plantation, situated in the parish of Concordia and State of Louisiana, and described as bounded on the north by Tecoa, east by Helena, south by swamp, and west by Oherupa, and being the south half of southwest quarter of section twenty-four, the south half of section twenty-three, all of section twenty-five, twenty-six, twenty-seven, thirty-five and thirty-six, and containing in the aggregate 8606.45 acres of land, more or less, together with the hereditaments and appurtenances thereunto belonging or in anywise appertaining.

“And the said first party, for his heirs, executors, administrators or assigns, does covenant and agree with said second party, his heirs and assigns, that at the time of the delivery of these presents he is well seized of the above granted premises in fee simple, that they are free from all incumbrances whatever, and that he will; and his heirs, assigns, administrators and executors shall forever warrant and defend the same against all lawful claims whatever.

“Provided, That these presents are on the express condition-that, if the said first party shall pay to the said second party all sums of money which may become due and payable from said first party to said second party at any time within one year from and after the date of these presents, according to the terms of a certain bond of even date herewith, executed by said first party and delivered to said second party, then these presents and the said bond shall cease and be null and void. But, in case of the non-payment of the said sum or sums mentioned and described in the said bond, or the interest thereof, or any part of said principal or interest, at the time, in the manner, and at the place specified for the payment thereof, and the performance of all the conditions of the said bond, then, and in such case, it shall and may be lawful for the said party of the second part, his heirs, executors, administrators or assigns to grant, bargain, sell, release and convey the said premises, with the appurtenances, and on such sale to make and execute to the purchaser or purchasers, their heirs and assigns forever, good, ample and sufficient deed or deeds of conveyance jin law, rendering the surplus moneys, if any there should be, to the said party of the first part, his heirs, executors or administrators.

“ And the said party of the second part, upon payment of all sums aforesaid, and the interest thereon, according to the terms of said bond, agrees that he will forthwith execute, or cause to be executed and delivered to the said party of the first part, his heirs or assigns, a good and sufficient deed re-conveying the land above described to said party of the first part, his heirs or assigns, without fraud or delay.

“ The execution and delivery of this instrument shall not hinder or prevent the said party of the first part, his heirs or' assigns, from cutting, manufacturing and removing any timber now standing, or being upon the land hereinbefore.described.

“ Provided, that the security of said party of the second part shall not be impaired thereby.

1 ‘ In witness whereof, the party of the first part has hereunto set his hand and seal the day and year first above written.

Jos. O. Caskey, (l. s.)

Executed in presence of—

“ C. O. STEVENS}

“ J. K. Stevens,

“ A. F. Lewis.”

From the foregoing recitals it appears that the act is one under private signature, and was executed in the State of Michigan by and between citizens of that State. That the consideration expressed is $7000 in cash had and received, for which the property was sold and conveyed. That the property described was real estate situated in the State of Louisiana — the act containing the proviso that if the grantor shall pay all the sums of money due, at a time specified, the same shall be void, otherwise the grantee may sell and convey the property, and from the proceeds of the sale realize the amount due.

Taken as a whole, the act only evidences a quasi alienation of the res, and not an absolute title to the property — a jus in re, though of limited or qualified character, and defeasible upon the happening of the condition specified.

In Mcllvane vs. Legare, 34 An. 926, this court said: “ We consider it well settled that this court will take judicial notice of the well-known fact that the common law forms the basis of the jurisprudence of our sister States of this Union,” etc. Citing Copely vs. Stanford, 2 An. 335; Whiston vs. Stodder, 8 M. 95; Colt vs. O’Callaghan, 2 An. 984.

Under the title of “ absolute conveyance intended as a mortgage” in the American and English Encyclopedia of Law we find this principle announced, viz.:

“ One of the most notable instances of an equitable mortgage is that of an absolute conveyance intended as security for a debt, and to have the effect of a mortgage.” Page 675.

And it is supported by numerous authorities collated from various common law States

Prom the same work we find the description given of a common law mortgage in these words, viz.:

“ A formal or common law mortgage has the component parts of a deed conveying the fee, with a condition added that it is to be void upon the payment of a specified debt, or the performance of some other designated thing. * * Covenants against waste are sometimes inserted.” Page 788. Oiting Jones on Mortgages, Sec. 60.

Applying these precepts to the instrument in question, and the inference is clear that it is a common law mortgage.

This precept has been maintained by the Michigan court, employing these words, to-wit:

According to the well settled rules of law a deed given to secure money lent, and redeemable by its payment, is itself a mortgage,” etc. Hurst vs. Beaver, 50 Michigan, 612.

In Jeffrey vs. Hursh, 58 Mich. 246, the principle is even more distinctly stated as applicable to the instrument under consideration.

“ It is now settled,” say the court, “ as well as any principle of law can be, that an absolute deed, with a bond or defeasance, or agreement executed at the same time, to reconvey the estate upon payment of a certain sum of money, constitute a mortgage, if the instruments are of the same date, or are executed and delivered at the same time, and as one transaction; and when this is the case, it is a conclusion of law that they constitute a legal mortgage.” Citing Wilson vs. Shoenburger, 31 Penn. St. 295; Ruttonbough vs. Ludwick, Id. 131.

The two instruments under consideration — bond and deed — are contemporaneous in date and state the same identical consideration, and, consequently, same constitute a mortgage in the State of Michigan ; and under an agreement of counsel, the laws and decisions of the courts of Michigan are to be considered as if they were formally introduced in evidence.

Hence, our conclusion is that the first question above propounded must be answered in the affirmative; and we must now determine what effect is to be given this act, as a mortgage in Louisiana, under the terms of our code. Art. 10. In determining the effect to be given to the act in the State of Louisiana, we must lose sight of its phraseology, and look to its substance alone, as the law and jurisprudence of the State of Michigan must be consulted with respect to its form; and, consulting the laws and jurisprudence of Michigan, we find its form is complete and perfect, so as to constitute the acts in question a valid mortgage, there. And finding same valid inform, in the State of Michigan, they must be assumed and treated as valid inform in Louisiana.

The essential difference between a mortgage at common law and one in Louisiana consists in the fact that the former is a quasi alienation and imports a delivery of possession, while the latter is a mere security without importing delivery to the mortgagee. R. C. C. 3290. Such an instrument as the one in question is not, in essence, or in form, a mortgage in this State; but being a mortgage in form and in essence in Michigan, it must be given effect as a mortgage in Louisiana, where it was intended to operate and have effect.

Quite a contrariety of cases of this and similar purport have been presented to this court for investigation and decision, and it will be necessary to review and analyze some of them in order to find the settled theory of our jurisprudence on this vexed question.

In Bernard vs. Scott, 12 An. 489, the court dealt with an act quite similar to the one under consideration, the principal question being whether it was “a sale under a condition which had become absolute,” or a mortgage — the property in controversy and covered by the act being situated in Louisiana, while the parties to the act resided in the States of Mississippi and Ohio, respectively.

Of this instrument this court said:

“As the parties to the instrument were both residents in States where the common law prevails; as the instrument was executed in a common law State, and in the form adopted to create a mortgage there; and as a part of the property subject to the action of the instrument was situated in the State of Mississippi, there can be no question that the original intention of the parties to the act, the grantor and the grantee, intended to create a mortgage to secure the payment of a sum of money. Citing 2 Blackstone Com. 158, and 4 Kent’s Com. 159.

The court further held that as the act covered property situated in Mississippi and Louisiana, a purchaser “ was bound to inquire what effect the law would give to the same; similar instruments have been held to be mortgages of property situated in a common law State, and afterward removed here. See Sinnott vs. Russell, 1 N. S. 522.

“In the case of Hayden vs. Nutt, 4 An. 71, the court recognized an instrument similar in form, executed in the State of Mississippi, and operating on the individual interest of the grantor in a tract of land situated in the State of Louisiana, as a mortgage.”

Of similar import is Watson vs. James, 15 An. 386.

In Bowman vs. McElroy, 14 An. 594, it was held that “ a deed of trust executed in Mississippi and recorded in this State, which expresses that it was given to secure a certain amount * * can not be enforced here against the property mortgaged, to the prejudice of other mortgage creditors, except for the amount specified.”

In Miller vs. Shotwell, 38 An. 891, the decision of the court turned upon a proper construction of an act which was executed in the State of Alabama between citizens of that State on one part, and a citizen of this State on the other part, and in respect to lands situated in this State. In terms the instrument under consideration in that case was very much the same as the one under consideration in the instant case; and of it this court expressed the opinion that “ the text of the instrument viewed in the light of our jurisprudence and of the laws of Alabama * * leaves no doubt in our minds as to the true intention of the parties thereto. It was clearly to create a mortgage by way of security for the purchase price of the lands therein described.”

To the same effect is Ricks vs. Goodrich, 3 An. 212; Gause vs. Bullard, 16 An. 107,- and Howe vs. Austin, 40 An. 323. Indeed, there is no decision we can find, and there is not one to which we have been referred, which announces a contrary doctrine.

The act under consideration in Thibodaux vs. Anderson, 34 An. 797, was executed in the parish of St. James, this State, between citizens of this State, and couched in the form of a common law mortgage, or deed of trust — the property affected being situated in this State.

This act was duly recorded, and came in competition with a mortgage which was executed in the form prescribed for mortgages in this State. Hence the question of rank, or priority, properly arose on the distribution of the assets realized from the sale of the property under executory proceedings.

Of this particular contract this court said: “This is, indeed, the first instance of this description which ever was submitted to this court for determination, on a question of mortgage affecting third persons.

“We do not hesitate to declare that as this nondescript act does not indicate its character, and does not clearly purport on its face to be a mortgage,'third persons are not bound to ascertain its nature, object and purport, by analyzing its features by systems of reasoning which do not, with certainty, conduce to the conclusion that it is an act of mortgage.

“ It is easier to say what the act is not, than to say what it is. Whatever contract it was intended to evidence, it surely can not be claimed that it is expressive of a mortgage given by Anderson to Boyd susceptible of affecting third persons, although it might have been entitled to be considered as security between the parties.

“Parties contracting in this State are required, in all their transactions affecting immovables situated therein, conferring or divesting real rights in such property, to comply with the forms prescribed by the local law and usages; * * * otherwise third persons sought to be affected thereby will not be concluded. Index animi verbo.

“ Reasonable doubt as to the true character of an act will always .protect effectually third parties from the operation of the same.”

From the foregoing quotation it clearly appears that the real distinction between the contract in question in that case and those examined in cases previously cited is visceral and consists in the difference in the situs of the contracts, and the citizenship of the contracting parties. Such a contract as the one treated of in that case does not come within the saving power of Art. ten (10) of the Oivil Code, because it was not an act passed in one country or State to have effect in another country or State. But it was a contract between citizens of this State with regard to real property in this State, and couched in the terms of a common law deed of trust. Hence the entire subject-matter of the covenant came under the operation of the laws of this State, and which give no sanction to either trust-deeds or trust-estates.

The conclusion is, therefore, quite clear that, on both reason and authority, there is no incompatibility between the principle announced in Thibodaux vs. Anderson and that announced in Miller vs. Shotwell, and previous cases.

Giving to the Michigan contract the legal effect it was, by the parties, intended to have, in this State, where it was by them intended to operate, 'and the conclusion is irresistible to the effect that, operating as a mortgage under our law, its timely and proper inscription affected third persons and creditors of the grantor and mortgagor in this State, just as completely as if same had been couched in the form prescribed by our law. And this principle is distinctly announced in Bowman vs. McElroy.

Giving to the Michigan contract effect as a mortgage in this State, two consequences necessarily follow, to-wit:

First — That, it having been duly inscribed on the book of mortgages in the parish where the property is situated prior to the attachment of Gaither, it primed the privilege he acquired by his seizure.

Second — That it being a mortgage evidenced by contract, it must be given effect as a conventional mortgage under our law.

Giving to it the effect of a conventional mortgage under our law, and the amount it was given to secure being $7000 with interest, the price of sale under ft. fa. issued under Gaither’s judgment was insufficient to cover it, and the adjudication is necessarily void ah initio, and conveyed no title to the purchaser. G. P. 684.

The general rule formulated under that article is, that property specially mortgaged can not be sold at tbe snit of a third party unless the price bid exceed the amount of such special mortgages. For if there be no surplus of proceeds after the payment of the mortgage there is no price, and the adjudication would'have no consideration. Bacas vs. Hernandez, 31 An. 87; Dunning vs. Coleman, 28 An. 48; Hills vs. Jacobs, 7 R. 406.

II.

In view of the opinion we entertain of the Michigan contract, the plaintiff is undoubtedly entitled to its enforcement against the one-fourth interest in the Criton plantation which Caskey acquired from Washington, and subsequently attached by Gaither. Consequently, plaintiff is entitled to personal judgment against the defendant, Caskey — he having personally appeared in the court below and answered, submitting himself to the jurisdiction of the court — for the sum of $7000, with recognition of lien and mortgage on the property described, to take date from the 10th of March, 1891, the date of recordation.

III.

With regard to the nullity of the judgment in the partition suit we are fully satisfied.

The averment of the petition is, that t}ie suit was instituted by Washington against Gaither and petitioner — the latter being a citizen of the State of Michigan — and that no curator ad hoc was appointed to represent him as an absent defendant — the clerk of court having appointed an alleged curator without affidavit being made of the absence of the judge of the District Court from the parish at the time; and the record of said partition suit disclosing that the curator thus appointed neither accepted the appointment or acted under it by filing an answer, or otherwise.

The theory of plaintiff’s counsel is that in such case the appointment of a curator ad hoc is jurisdictional; and we have so held in many cases. It is manifestly a sine qua non. Butler vs. Washington, 45 An. 279, and Young vs. Upshur, 42 An. 362.

The only means of subjecting the property to the power and jurisdiction of the court, is by citing the plaintiff as an absentee by means of a curator ad hoe.

The petition bears this endorsement, to-wit:

“ The foregoing petition considered, it is ordered that John Dale be appointed curator to represent the interest of Samuel G. N. Gates’ This signed in chambers, 18th January, 1892.

“W. H. Shields,

“Clerk of said Court.”

This order is not preceded by any affidavit.

The Constitution confers upon the General Assembly the power “ to vest in clerks of court authority to grant such orders and do such acts as may be deemed necessary for the furtherance of the administration of justice;” and it further declares that “ in all cases powers thus vested shall be specified and determined.” Constitution, Art. 122.

In pursuance of this constitutional authority, the General Assembly enacted a statute which provides that “in the absence of the judge from the parish, or in case of his resignation, they (clerks of District Oourts) shall have power to allow interventions, grant orders o third opposition * * * appoint special tutors, or tutors ad hoc to minors, appoint curators and curators ad hoe, appoint advocates to absentees.” Sec. 4 of Act 48 of 1882.

And this statute further provides that “ in all cases in which the clerk is empowered by this act to grant orders in the absence of the judge from the parish, or in case of his recusation, the oath of the party, or of his attorney, that the judge is absent from the parish or being recused, he is-unable to give the order, must be annexed to the petition or application.” Id., See. 6.

The power thus vested by the Legislature in the clerks of court is particularly specified, and the mode of its exercise is also specified in mandatory terms, and same can not be exercised in any other manner. •

There is no room for construction. The statute is plain. The requirement of the law directing the appointment of curator ad hoc to absentees is jurisdictional, and the manner of its observance is a rule of property.

In the case of Washington vs. Gaither there is not the least appearance of this statute having been complied with, and the result is the absolute nullity of the judgment pronounced, in so far as the present plaintiff’s rights are concerned, and it is our province and duty to thus declare it.

The judgment appealed from is erroneous and must be reversed.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled and reversed; and it is further ordered, adjudged and decreed that there be judgment in favor of the plaintiff (1) annulling the judicial sale of the oue-fourth interest of Joseph G. Caskey in the Oriton plantation, which he purchased from John Washington; (2) that he have and recover of and from the defendant Caskey the sum of $7000, with recognition of his lien and mortgage, taking date from the date of its registry, March 15, 1891; (3) annulling the judgment rendered in the partition suit of Washington vs. Gaither.

It is finally ordered and decreed that the defendant and appellee, Gaither, be taxed with the costs of both courts.


text:
    No. 11,441.
    State of Louisiana vs. D. K. Bingham.
    If the defendant is made aware, previous to trial, of the necessity of employing counsel to defend his case, and neglects to make such employment and declines to accept the services of counsel whose services are placed at his command, it is his own fault if he proceeds to trial without requiring service of a copy o the jury list and the information as the law requires; and if illegal or incompetent evidence is admitted against him without objection, he is to blame.
    APPEAL from the Seventh District Court, Parish of East CarrolL Montgomery, J.

      M. J. Cunningham Attorney General, Jos. E. Ransdell, District Attorney, for the State:
    1. The evidence shows the defendant was an unusually intelligent negro; that his brother had employed counsel to defend him.
    2. The law does not require service of the venire on an accused who elects to be tried by the judge.
    8. An objection of failure to serve such venire made after trial and conviction, comes too late. State vs. Price, 6 An. 691; State vs. Benjamin, 7 An. 47; State vs. Shay, 30 An. 114; 1 Bishop Or. Pr., 126.

      Roht. Whetstone Attorney for Defendant and Appellant:
    1. Every pexson indicted fox any crime, capital or punishable with imprisonment at hard labor for even years or more, shall have a copy of the indictment and the list of the jury which are to pass on his trial delivered to him at least two entire days before trial; he shall be allowed to make his fuli defence by counsel learned in the law; the judge of the court before whom he is to be tried shall immediately, upon his request, assign to him such counsel as he shall desire. Rev. Stat., Sec. 992; 28 An. 631; 38 An. 679; 34 An. 1037; 43 An. 895.
   The opinion of the court was delivered by

Watkins, J.

The defendant was tried for and convicted of the crime of forgery, and was sentenced to imprisonment in the State penitentiary for a term of five years; from the judgment and sentence he has appealed, relying on a motion for a new trial which he insists was improperly overruled.

The grounds assigned in the motion are: (1) That the judgment and sentence pronounced are contrary to the law and evidence; (2) that he has no knowledge of law, is poor and without means to employ counsel to defend his case; (3) that he was not advised by the court of his right or privilege, under the law, to have counsel assigned to him, whose duty it was to assist him in making his defence; and that, consequently, his case was tried ex parte and illegal evidence adduced against him, to which he did not have the privilege of objecting, or of offering evidence in rebuttal; (4) that there was no copy of the vepire or indictment served upon him, as the law directs; (5) that through ignorance of his rights he elected to be tried by the court, when, in fact, he should have been tried by a jury.

On the trial of the motion both parties introduced witnesses, and from their testimony, which was taken in writing and is incorporated in the transcript, we find the following substantial facts, to-wit:

That the District Judge did not appoint or assign the defendant ■counsel because he was an unusually intelligent colored man, and the ■court presumed he knew whether or not he was entitled to a lawyer ,to defend his case; and that he made no request of the court to appoint one.

That the defendant denies the possession of means sufficient to employ counsel, and disavows knowledge of his right to have counsel appointed to assist him.

That since last June he has been constantly incarcerated in the parish jail, and was coerced to trial without legal advice, and without having been served with a copy of the jury list of any kind.

That since his trial and conviction, he did not employ the attorney who prepared the motion for a new trial ard assisted in the trial of it.

Per contra, that one of the practising attorneys at the bar of the court of trial, at the request of defendant’s brother, called to see the defendant professionally in reference to the case; and that his services were engaged by him (the defendant’s brother) to defend the accused. But that during the course of their interview, the defendant signified that he had perfect confidence in his own ability to defend himself, and he thereupon withdrew from the case.

That this interview occurred only a few minutes before the ease was called for trial.

These statements, taken as a whole, seem to disclose, on the part of the accused, a full knowledge of his right to have counsel to represent him, and hence the duty was imposed upon him to have made a request of the judge for the assignment of counsel to defend-him. This is the plain precept of the law. State vs. Doyle, 36 An. 91; R. S., Sec. 992.

If incompetent and illegal evidence was adduced against him on the trial; if no copy of the information and the jury list were served upon him, it was evidently because he did not have timely and competent legal advice; but it- was just as evidently the fault of the defendant that he declined to accept the services of the attorney his brother had selected for him, and risked his defence on his own ability.

That his action was intelligent and thoroughly understood, is attested by the fact that the interview he had with the counsel his brother employed for him, occurred on the same day his trial took place.

Under these circumstances it would be to award a premium upon negligence, to reverse the judgment and grant the defendant a new trial.

Judgment affirmed.