author: Nicholes, C. J.

text:
    No. 12,993.
    E. B. Williams vs. Samuel Bernstein. In Re Samuel Bernstein, Applying for Certiorari or Writ of Review to the Court of Appeal, First Circuit, State of Louisiana.
    Syllabus.
    "1. An action of boundary, pure and simple, is not open to a plea of prescription. (Civil Code, Article 825.) The action may be repelled by showing that the boundary line between the two properties has been settled by judicial decree or by a survey made by a surveyor in conformity with the requirements of the Civil Code. A line, however, even when established between the parties by such a survey- yields to a demand for the rectification of the same under an allegation of error unless the party resisting the rectification should allege and show an adverse possession of ten years under the erroneous line.

      2. Tbg mere fact that parties owning adjoining properties have cultivated land up to a certain line or up to a certain fence built either by one or both, or built by one and repaired by the other does not per so evidence an adverse possession or an acquiescence in, knowledge of or recognition of an adverse ownership or adverse possession. Neighbors constantly run up fences within or beyond the boundary lines or join fences, doing so with the knowledge and understanding that suen acts are merely temporary and done subsidiarily to and with reference to the right of both to ultimacelj ascertain and ftx rights by an action of boundary, or through a formal, legal survey. Until this happens such land is held in "occupancy," and not in "adverse possession" — certainly in the absence of a clear and direct claim ad vancod of adverse ownership and possession.

      Jacle é Fleming for Petitioner, Defendant and Appellant.

      Pietson <& Porter for Williams, Plaintiff and Appellee.
    Submitted November 28, 1898.
    Opinion handed down January 23, 1899.
   Statement op Facts.

The opinion of the court was delivered by

Nicholes, C. J.

The plaintiff, Williams, alleging that he and (In defendant were owners of contiguous pieces of property; that the limits and boundaries between them had never been fixed and determined judicially, although one or more ex parte surveys had been made of the line separating the tracts, prayed that defendant be cited; that the court appoint a skilled, sworn surveyor to inspect the contiguous tracts and to establish and mark the boundaries, and to make proves verbal of his work to the court, and for judgment, establishing and fixing the true boundary lines and limits between the tracts.

Defendant answered, pleading the general issue. He admitted that plaintiff had purchased a tract of land adjoining his own ou the 8th of October, 1872, but averred that the same, had been both sold and purchased with special reference to what is called in the answer the “Ragan Survey” boundary line, forming the division line between the two estates which had ever since been recognized by all parties in interest.

lie averred ihat it would not be possible for the court to adopt the survey made by one Henry under the orders of court and make the boundary line conform to the same, as by so doing it would give to the plaintiff three hundred and six acres in his tract, or three acres more .than his title called for, which was for three hundred and three acres.

lie insisted that this survey should be rejected, and the boundary fixed according to a certain “old Hedge Row Line” (what that line is ■ does not clearly appear), but should another line be adopted, that it should be at a point other than that claimed by the plaintiff.

Defendant ultimately pleaded in his favor, the prescription of ten years, claiming that plaintiff’s action, under the pleadings and facts of the case, was for a “rectification” of boundary, and is prescribed by ten years on account of adverse possession for that time.

The District Court rendered judgment in favor of the defendant, decreeing the division line between the two tracts to be that fixed by the survey made by Ragan on the 10th day of August, 1872.

Plaintiff appealed to the Court of Appeals of the First Circuit, and -that court reversed the judgment appealed from, and rendered judgment in favor of the plaintiff, fixing and establishing the boundary line between the tracts according to the government subdivisions as -'indicated in the calls of the deed, without reference to any survey previously made by Ragan, and remanded the cause to the lower court with instructions to order the surveyor to run plaintiff’s line on the east according to government surveys and the calls of his deed, and to place permanent posts on said line which should constitute the true boundary between the two estates.”

Bernstein, the defendant in the case, then made the present application to this court, praying that under the provisions of Article 101 of the Constitution that the whole record be sent up for its consideration, and the whole matter in controversy be passed upon by it. He annexes to his application the briefs filed by him in the Court of Appeals and a c-opy of the decree of the latter court, which would show he declares the issues involved in the case, as well as the questions of law and errors alleged to exist- in the court’s decree.

He says that he specially complains that the judgment of the District Court is in conflict with the established jurisprudence of the State which he asserts to be as follows:

“Where a boundary between contiguous estates has been fixed by a surveyor, or established and acquiesced in by the owners for over ten years, the right, to have it rectified lapses by express provisions of theOode, and where the contiguous owners hold property under titles-from a common author, and ono of them has possessed the disputed part for over ten years under the conditions prescribed in the Code from Article 3478 to 3498, his title becomes, by legal effect, as absolute and indefeasible as to that part as if his deed had included it.”

The Court of Appeals in deciding the case uses the following language :

The material facts necessary to a proper understanding of this case may be briefly stated as follows:

“The parties both acquired the contiguous estates from a common author who owned the whole property. The plaintiff’s title calls for specific lands described by government subdivisions as the East half of the West half, and West half of the East half of Section 19, Township 3, Range 5, containing 303 acres. The sale to plaintiff was made October 8th, 1872, and according to the admission in the record, was-recorded a few days afterwards. In this deed there are no limitations and restrictions.

In the defendant’s deed the laud is described as follows: 'A certain tract of land situated in the parish of Natchitoches, in Sections 19 and 30, in Township 8, Range 5, West, containing 99.50 acres more- or less according to a map made by A. V. Ragan, parish surveyor of' the parish of Grant, hereto annexed, and made a part hereof, bounded' north by lands of Isaac MeMills, on the south by Clear Bayou, on the-east by Bayou de Glaze and on the west by land of J. R. Williams.”

The court survey indicates that the original section corner can be easily located, and it follows that if the ease hinged exclusively on the title deed the case would be with the plaintiff as there would be no-difficulty under the Code in fixing the line. The plaintiff having the older title calling for specific lauds b3r government subdivisions the lines would have to be run accordingly. Articles 847 and 849 (O. C.) would conclusively require that his title should prevail, and that a line should be so run as to include the whole area embraced within the-calls of his deed.

It is clear that the plaintiff’s act of sale is not one per avarsionem Marigny vs. Nivet et al, 2nd La. 498; Johnson vs. Quarles, 3rd La. 90; Phelps vs. Wilson, 16th La. 185. The only complication that appears in the matter is the fact that the common author was the owner of the remaining- portion of Section 19 on the East 'and appears to have set apart a portion thereof to the defendant, and title to the same was afterwards made to him according to a survey made by agreement of the defendant and his vendor. Some time prior to the sale to plaintiff a survey was made by Ragan, in which survey the line was run on the Western boundary, not according to the government subdivisions, but an arbitrary line was run so as to include one hundred acres. This arbitrary line the common author had the legal right to make.

But the pivotal point in the ease on which the whole controversy is made to turn, in our opinion, is whether the plaintiff bought with reference to this arbitrary line, and if not, does his acquiescence in this line of subdivision for more than ten years preclude his right of action to fix a new boundary line between the two estates more in conformity with his deeds?

The sole object of this action is to fix visible marks of separation of estates. Its character and obje’et are then described by the Supreme Court in Andrews vs. Knox, 10th Ann. 605. '‘When two tracts of' land contiguous to each other, have never been separated, or had their boundaries determined, or if the boundaries determined are no longer to be seen, each of the proprietors has the right to compel the other to-fix the limits of their respective estates.

So the question to be determined is, have these two contiguous tracts-of land been separated judicially or otherwise, and the boundary line-between the two determined according to law.’

It might be important in this connection to state that what is known? as the Ragan line is indicated on a map made by Ragan annexed to-the defendant’s deed, and recorded in 1875.

It is established that the fence which divides the two properties is on the Ragan line and that both proprietors have looked to-this as the dividing- line since its construction in 1875.

The fence was originally constructed on the Ragan line by the defendant, and has occasionally been rebuilt and repaired by the plaintiffs, but there is no evidence in the record that there was any agreement between the two proprietors that the fence of the Ragan line should be taken as the boundary line between said properties.

The proas verbal of the court survey indicates that there v as also a survey made by Mr. Percy, but there is an absence oí any evidence in the record tending' to show when this survey was made, or at whose instance.

The Ragan survey does not purport to be run according to government subdivision in Section 19. The line is in harmony with the government subdivisions in Section 30, but when Section 19 is reached going north an offset of 1.40 chains is made west which we presume was done by the surveyor so as to include in the Bernstein tract 100 acres as near as practicable. The line marked by the government survey follows the government subdivision called for by the plaintiff’s deed.

So to give the plaintiff the land according to the calls of his deed we would have to encroach on the lands of the defendant 5.IS acres— the land in dispute. The Ragan line, in Section 12, is an artificial ■or arbitrary one as clearly demonstrated by the map made by him.

Bernstein accepted a deed in which the western boundary of his land in Section 19 is referred to as "Williams land, and under all the authorities when he accepted a deed bounding him by another’s land the land referred to in the deed became a muniment and controlled distances.

The contention of the plaintiff is that he purchased the land included in the calls of his deed, without reference to any particular survey and'without mention being made in the act of sale of any circumstances which would qualify or restrict his rights to demand the whole quantity embiaeed within the calls of his deed; the defendant contending that the plaintiff took the land with full knowledge of the Ragan Survey made by the common author, and has recognized the same as the boundary line between said estates ever since 1873. As we have said, there are no restrictions or limitations in plaintiff’s deed or reference to any survey made by Ragan, and it remains to consider whether anything has been done by the plaintiff looking to the Ragan line as the true boundary, and by means of which he has lost the right to recover the whole of the property included or embraced within the calls of his deed. In other words, whether there has been such a fixing or establishment of the boundary line so as to operate as a basis of the prescription of ten years' as contemplated by Article 853 of the Civil Code.

If his right of action is not barred by the prescription of ten years according to our construction of the law, he is legally the owner of the wüoie o± tne land embraced within the calls of his deed and the boundary line should be adjusted accordingly.

'jLhe mam question in our opinion that underlies a proper solution ■of this case is whether the erection of a division fence by two adj'oinmg proprietors, and each looking to this as the division line for more .than ten years, constitutes- the establishment of the true boundary in the absence of any agreement or otherwise, that the site of the fence .should constitute the true boundary between- the two proprties, and if this state of facts should -constitute the fixing of a boundary within the contemplation of Articles 833 and 853 of the Civil Code, and would any action in rectification of the boundary thus made, be barred by the prescription of ten years? "We must confess that under the facts and circumstances viewed in the light of judicial expression of our Supreme Court, the question is not free from difficulty.

The equities of the case seem to preponderate in favor of the defendant, but the articles of the Code on the subject are positive and •direct. If the boundaries had been fixed according to a common title or according to different titles, and the surveyor had committed an ■error in his measure, it can always be rectified unless the part of the land on which the error was committed be acquired by an adverse possession of ten years if the parties are present, and twenty years, if .absent. C.C. 853. Whether the limits be fixed judicially or extra-.judicially it must be done by a sworn surveyor of the State, who shall .be bound to make a proces verbal of his work in the presence of two witnesses called for the purpose, who shall sign the proces verbal with him, or mention shall be made of the causes which prevented them from signing. O. C. 833.”

The court then takes up and discusses the cases of Broussard vs. Duhamel, 3rd N. S. 11 Babineau vs. Cormier, 1 N. S. 457; Bourguignon vs. Boudousquie, 6th N. S. 700; Frederick vs. Brulard, 6th Ann. 382; Lemoin vs. Monela, 9th Ann. 515; Williamson vs. Himel, XI La. 183; Gray vs. Couvillon, 12th Ann. 730; Zeringue vs. Harang’s Administrator, 17th La. 350 and City vs. Shakspeare, 39th Ann. 1033, closing- with an extract from the latter case in which the court says: “Article 853 is found in the Code under the title of 'Fixing the limits and of surveying the lands,’ and it must be construed with reference to other articles of the Code under the same title which treat •of the same subject matter. The privotal article under that title, Article 833, provides, that whether the limits be fixed judicially or oxtra-judieially, it must be done by a sworn surveyor of the State who-shall be bound to make a proces verbal of his work in the presence of two witnesses called for the purpose, who shall sign the proces verbal with him.

“There is no pretence here that such fixing of limits preceded the location of the partition fence erected by the commissary of the municipality at the time which ho describes as being sometime before the consolidation in 1852.”

The Court of Appeal proceeds to say: “The plain purport of these adjudications and the only conclusion to be drawn therefrom is that unless the boundary lines between the two contiguous estates have-been fixed in conformity with Article 853 of the Civil Code that an action in rectification is only prescribable by thirty years. Even if the-lines be fixed extra judicially by a sworn survey, or ‘after due notice to-the parties and no opposition being made, the parties do not thereby lose their right of resorting to a court of justice to rectify the opera- ' tions if they think it for their interest.’ C. C. 839. Lacour vs. Watson, 12th Ann. 214. The right of action however to rectify a mistake of this character is barred by the prescription of ten years.

The theory and policy of the law is that the survey by a sworn surveyor is an official act and the proces verbal is written evidence of the-proper location of land in accordance with the title papers of the parties, and is sufficient to translate the ownership of property and serve as the basis of prescription.

Applying the principles of law thus announced to the uncontested1 facts of the case we are led to the conclusion that the plaintiffs right of action to establish a permanent boundary line between his property, and that of defendant, is not barred by the prescription ifieaded.

Recurring again to the title deeds of the parties, the fact remains that the calls in plaintiffs deed are by government subdivisions, and according to which he is entitled to all the lands embraced within the east half of the west half, and the west half of the east half of Section 19, and that the line should be run accordingly.

A sale by government subdivisions controls acreage stipulated in-the deed. Such sales of land have certain limits which are mathematically established and generally known — from this it becames a-certain and limited body. (Phelps vs. Wilson, 16 La. 185.) In a sale of this character, a supplement of the price in the event of anoverplus of measure canuot be claimed by the seller, neither can the purchaser claim a diminution of price on account of deficiency in the measure unless the real measure falls short by one-twentieth, regard being had to the totality of the object sold. C. C. 2494; Phelps vs. Wilson, 16th La. 185.

The defendant’s tract is described as being bounded on the west by land of plaintiff. The Civil Code, Art. 844, declares that 'when an owner has alienated one of two estates which belonged to him, and the ownership of any part of it is contested, the lands assigned to it by the vendor at the time of the sale must be consulted.

“The limits anciently subsisting between two estates must not be-regarded because the designation which the vendor makes of the metes and bounds form new limits between the two estates, or between the parts of them which he has sold.’

Now under this article if we consult the limits assigned by the vendor at the time of the sale it is clear that we should follow the-calls of the plaintiff’s deed and not consider “limits anciently subsisting between the two estates,’ because the designation, which the vendor makes of the metes and bounds, form new limits between the two estates, or between thé parts of them which he has sold. Lacour vs. Watson, 12th Ann. 214; Alexander vs. Bourdier & Bellesein, 43rd Ann. 324.

There is nothing to show that an adverse possession has produced. any difference in plaintiff’s situation so as to defeat his right by prescription. While it was perfectly competent for the common author to establish an arbitrary boundary between two tracts, yet when she sold specific tracts without any mention being made in the-act .of sale of the boundary thus established, it is perfectly clear that the purchaser is not bound by any such ex parte survey made by the defendant, or by one made by him, and the common author. Sprigg vs. Hooper, 9th Rob. 248.

If there be a written declaration fixing and establishing the line-contended for by the defendant by the common author by which it was declared that the Bagan line should form the boundary between the two properties, it would not have been binding on the plaintiff unless the same has been duly recorded, or otherwise brought home to the plaintiff by recitals in the deed to that effect. Kittridge vs. Landry, 2nd Rob. 72.

There are numerous other issues raised and discussed, both by ■plaintiffs and defendant’s counsel, which we have not considered, as under our view of the ease a solution of the controversy hinges entirely on the plea of prescription tendered by the defendant.

Entertaining the views that we have announced, it follows that the case is with the plaintiff, and that the judgment appealed from must be reversed.”

Opinion.

I have examined the case carefully to see whether the relator has made such a showing as would justify this court in issuing a writ of certiorari to the Court of Appeals, , I think he has not, but that the judgment complained of is correct. The character impressed upon ■the action by plaintiff’s pleadings is not an action for a rectification of boundaries as relator asserts, but an action of boundary pure and simple. An action of that character is not open to a plea of prescription. (C. 0. 825.) The action may be repelled by showing that the boundary line between the two properties had been settled by judicial decree or by a survey made by a surveyor in- conformity to the requirements of the Civil Code.

A line, however, even when established between the parties by such a survey yields to a demand under an allegation of error for the rectification of the line unless the party resisting the rectification should allege and show an adverse possession of ten years under the erroneous line. The mere fact that parties owning adjoining property have cultivated lands up to a certain line or up to a certain fence built either by one or by both, or built by one and repaired by the other, does not per se evidence an adverse possession up to the line or fence, or an acquiescence in or recognition of an adverse owner•ship. Neighbors constantly run up fences within or beyond the boundary lines and join their fences, doing so with the knowledge and understanding that such acts are merely temporary and done subsidiarily to and with reference to the right of both to ultimately ascertain and fix rights by an action of boundary or through a formal legal survey. Until this happens the lands held by each are in the occupancy and not in the adverse possession of either, certainly so in the absence of a clear and direct claim advanced of adverse ownership and possession.

In the absence of such a claim the other party is justified in assuming that matters as to boundary are resting in abeyance subject to-future adjustment through an action of boundary.

There can be no question as to the correctness of the judgment in dealing with the original rights or the parties as derived by each through their vendor. Roth claim under a common author. Plaintiff was the first purchaser under a title calling for the government, lines as the boundary lines. Defendant purchased subsequently a certain number of acres of land as per a certain survey referred to,, this act declaring, however, that the property purchased was bounded, by the plaintiff's land.

There can be no doubt as to the right of a person owning adjoining, properties acquired by him under sepiarate and distinct titles, to ignore the original division lines and to dispiose of his property according- to new and arbitrary lines, but if he has sold to one by the original lines he cannot thereafter sell to another by a new and arbitrary line-to the prejudice of the rights and boundaries conveyed to his first vendor. Ills act in so doing- would be null and void as an attempted sale of another person’s property.

We understand relator to say that whether or not his vendor had the legal right to sell to him as she did, she did in point of fact sell,, and his subsequent possession was not over and beyond the title as-made to him which would require a prescription of thirty years to acquire ownership, but in strict conformity with and to the full limits-of the title given him which would require only a prescription, of ten years to acquire the ownership of anything which his vendor was not legally entitled to convey to him.

We think that holding as he did by purchase, property adjoining to-(hat already conveyed to the plaintiff by a common author, he can not claim to have held any portion of the property actually owned by the -plaintiff by adverse possession in the absence of a clear and distinct advanced claim of adverse ownership of that portion. Plaintiff would have the right to assume that defendant’s possession (if such it could be termed) was by sufferance, precarious and subsidiary to the-adjustment of the exact legal rights of the narties, to be ultimately ascertained and fixed bv an action of boundary.

I think relator’s application for a writ of certiorari should, be refused. The application is hereby refused.

(Signed) Francis T. Nici-iolls,

We concur: Chief Justice.

(Signed) L. B. W.

(Signed) J. A. B.

(Signed) H. C. M.

(Signed) N. C. B.


source: Caselaw Access Project

author: Nicholls, C. J. j\I iller, J.

license: Public Domain

text:
    No. 12,828.
    Succession of Mrs. Bridget Hartigan.
    Syllabus.
    It is the duty of executors and administrators to act for the protection of the heirs and legatees of a succession, and the mass of creditors, not in that of special creditors. When an administrator or executor has placed certain ' parties upon his account as unpaid creditors, and the claims on opposition made, have teen either reduced or rejected, the executor or administrator is not, as such, authorized to appeal on their behalf and champion their rights. The parties aggrieved must appeal themselves. If the administrator or executor has placed himself on the account as a creditor, and his claim is reduced or rejected, he must appeal as an individual, not as executor to obtain relief. (Ferguson & Hall vs. Their Creditors, 19th La. Ann. 278; Girod vs. Creditors, 2nd Ann. 548 ; Beer vs. Creditors, 12th Ann. 774 ; Payne & Co. vs. Dejean, 32nd Ann. 889 ; Chapoton vs. Creditors, 46th Ann. 414; Andrus vs. Creditors, 46th Ann. 1351.)
    On Rehearing.
    The executor has no interest or right to appeal from the judgment which rejects items on the account filed by him alleged to be due creditors, and rejects also amounts placed on the account claimed to be due the executor. The appeal allowed by law is by the aggrieved creditor and by the .executor personally.
    ON APPEAL from the Civil District Court for the Parish of Orleans. Bighior, J.

      Horace E. Uplon for William H. Bourke, Testamentary Executor. Appellant.

      Edwin T. Merrick for John Hannan, Residuary and Universal Legatee, Opponent, Appellee.
    Submitted on briefs November 22, 1898.
    Opinion handed down December 5, 1898.
    Rehearing refused January 23, 1899.
   On the application for Rehearing the opinion of the court was •delivered by Miller, J.

The opinion of the court was delivered by

Nicholls, C. J.

This is an appeal by William H. Bourke, in his capacity as testamentary executor of the succession of Bridget Hartigan, from a judgment sustaining partially the opposition of John Hannan, residuary universal legatee of the deceased, to a provisional account filed by the executor as such.

The judgment appealed from reduced or rejected a number of unpaid claims placed on the account by the executor as debts justly due by the succession to different parties, among which were several .claims set out as being due to the executor himself, personally, by Mrs. Bridget Hartigan. The judgment also set aside, as having to be considered “not written,” a clause in the will of Mrs. Hartigan, directing that the amount which would accrue to the residuary legatee from the succession should be paid over to him, one hundred dollars in cash, and the" balance in monthly instalments of one hundred dollars, instead of being paid over in entirety immediately upon the settlement of the succession. No motion has been made to dismiss the appeal.

The residuary legatee moved, in the Supreme Court, that the judgment be amended “by allowing him to be placed in possession of all the remaining property of the succession, all debts having been paid.”

The amount of the succession is such as would vest appellate jurisdiction in this court and authorize us to take action were the parties legally interested in a reversal of the judgment before us seeking to obtain relief, but the only appellant in the case is William H. Bourke appealing not personally, but officially in his capacity as testamentary executor.

As such he does not represent the parties who may have been aggrieved by the judgment, by reduction or rejection of their claims-

These parties, including William H. Bourke, personally and individually, should have themselves appealed, inasmuch as the testamentary executor does not officially represent them on appeal.

It is the duty of executors and administrators to act for the protection of the interest of the heirs in the succession, and that of the mass of creditors, and not in-the interest of special creditors.

In the succession of Pettis, 11 An. 177, this court said: “The administrator has no capacity to appeal on-behalf of parties whom he has placed on his account as creditors, and whose claims have been opposed and rejected by the court. It is no part of the administrator’s-business to swell the amount of indebtedness of the estate which he administers beyond the limits fixed by the court, of the first instance. If convinced himself of the correctness of a claim, he has done his duty by placing it upon the account. In the subsequent contest between the claimant and creditors, or heirs, the administrator is supposed to be disinterested, and cannot, therefore, be aggrieved by its decision. This point has been long ago settled in Furguson & Hall vs. Their Creditors, 19 La. 278.”

This principle has been since affirmed and acted upon in Girod vs. Creditors, 2 An. 548; Beer vs. His Creditors, 12 An. 774; Payne & Co. vs. DeJean, 32 An. 889; Chapoton vs. Creditors, 46 An. 414; Andrus vs. Creditors, 46 An. 1351.

The position of an executor appealing from a decree upon aii opposition to his account, filed by a creditor, increasing the amount beyond that which the executor had recognized as the amount due him, or ordering him to place claims on the account which he has declined to recognize at all, by which action the mass of creditors or heirs are affected injuriously, is very different from what it is where the claims as acknowledegod by him have been reduced or rejected. The reason for this difference is, we think, too clear to need elaboration.

The executor abandoned, in this, court, opposition to the portion of the judgment appealed from, which set aside as having to be considered “not writ!on” the clause of the will attacked by the residuary legatee.

By reason of this abandonment of the only issue which the executor,.. as such, was justified in presenting-, there is now before the court no issue advanced by one with legal capacity to urge it which we are called upon to review.

.Nothing' was decreed in the lower court in opposition to the provisions of the will other than the issue abandonéd by the executor.

\Ve do not think the amendment asked lor by appellee should be granted, it being relief advanced for the first time in the Supreme Court.

The judgment of the District Court is hereby affirmed.

On Application for Bhiiearinc.

j\I iller, J.

The appeal is by the executor of the deceased from the judgment of the lower court rejecting, as charges against the succession, items on his account claimed to be due to himself and to sundry creditors. The dismissal of the aiipeal was placed on the ground that the executor has no appealable interest; that the apxieal allowed was by the creditors who might deem themselves aggrieved by the disallowance of the amounts awarded them, and by the executor personally, in respect to the alleged error of the judgment rejecting his demands personally. It is insisted oil the rehearing that we erred in dismissing the appeal.

This court, from an early xieriod, has affirmed that ax>x>eals from judgments disallowing items on the account filed by representatives' of successions, or by syndics, alleged to be due creditors, must be by the creditors. So when the appeal is from the judgment disallowing the personal claim, the administrator conceives he has against the succession. Ferguson & Hall vs. Their Creditors, 19 La. 278; Kohn vs. Wagner, 1 Rob. 275; Beer vs. Their Creditors, 12 An. 774; Payne vs. Dejean, 32 An. 889; Succession of Heffner, 49 An. 413. It is contended that the principle of those decisions does not apiply to executors. Why the executor should be deemed to have an appealable interest when the administrator of a succession has none from the judgment rejecting the claims of alleged creditors, and why either the executor or administrator representing the succession should have the right to appeal in their official capacity from the judgment in favor of the succession disallowing the alleged claim of one or the other as creditors, is not of ready appreciation. We have been referred to the decision in 33 An. p. 1319, Succession- of Ames, and to the case of Sue • cession of Allen, 48 An. 1040, as sustaining the contention of the appellant. It is true that in the 33d Annual the court distinguishes the functions of the executor derived from the will from those of the administrator derived from the law, and because of that difference the court, in its reasoning, uses expressions to the effect that the appeal by an executor brings up for review the decision rejecting the items lie placed on his account. In the case of Allen, 48 An. 1040, the reasoning in the Ames case is introduced in the opinion. But in the Ames ease there was an appeal by the heirs, and in the Allen case it was the appeal of the heirs the executor moved to dismiss. We cannot perceive that either of the eases cited is calculated to disturb the principle we conceive settled in our jurisprudence; that representatives of successions have no appealable interest in judgments in favor of the successions against creditors. This court recognized and reaffirmed our jurisprudence on the subject in Succession of Heffner, 49 An. 401. We feel constrained to refuse the rehearing.


author: Nicholls, C. J.

text:
    No. 12,905.
    Succession of Robert Manson.
    Syllabus.
    1. The effect of the Registry laws is not so potent as to necessarily vest in a minor a legal mortgage on certain property standing on the records in the name of his natural tutor, when, in point of fact it had never belonged to him; he had not assumed ownership over it, but had, ab initio¡, in the only Instrument connecting him with the title, recognized the property to belong to another person.
    ■2. The mortgage in favor of minors upon the property of their natural tutors to secure the fidelity of the tutors’ administration, is created by the law and not the. convention of parties. It is declared by the law to attach to the property of the tutors not that apparently belonging to them. There may be cases where the mortgage would attach to property so circumstanced, but there are others where the mortgage should not be made to extend beyond the exact terms of the law.

      ON APPEAL from the Civil District Court for the Parish of Orleans. Monroe, 3.

      Ilarry H. Hall for Whitney National Bank, Plaintiff in Rule, Appellee.
    Buck, Walshe & Buck and 8. L. Gilmore for Undertutor of the .minor, Olive Manson, Defendant in Rule, Appellant.
    Argued and Submitted December 7, 1898.
    Opinion handed down January 23, 1899.
   Statement of the Case.

The opinion of the court was delivered by

Nicholls, C. J.

The Whitney National Bank took a rule in this .ease on Mrs. Lizzie D. Oliver, widow of Robert Manson, and now wife ■ of James M. Pagaud, natural tutrix of her minor child, Olive Manson, on James M. Pagaud, tutor, and James J. Manson, undertutor, to •show cause why the general mortgage resulting from the co-tutorship •of the minors, to secure the sum of eighty-three thousand two hundred and thirteen dollars and fifty-four cents, as per certificate of the clerk ■of the Civil District Court, dated April 5, 1897, recorded in the mortgage office on the 5th day of April, 1897, in book 489, folio 604, should not be cancelled and erased insofar as it rests upon or affects the following property:

“Two certain lots of ground, together with the buildings and improvements thereon, and all the rights, ways, privileges, servitudes -and advantages thereunto appertaining and belonging, situated in the 'Sixth District of this city, designated by the Nos. 1 and 2 of square No. 23 on the original plan of the Fauborg Plaisance, bounded by •Carondelet, Baronne, Delachaise and Louisiana avenue, and measuring each thirty feet front on Louisiana avenue, by a depth of one hundred and twenty-eight feet between parallel lines; lot No. 1 forming the corner of Louisiana avenue and Oarondelet street,” for the following reasons:

That on the T7tli of June the Whitney National Bank paid to-William G. Mitchell the sum of five thousand dollars, payable in thirty days after date, to secure which sum Mitchell pledged to the. bank his mortgage note, dated December 16, 1892, payable in one year from that date for five thousand dollars, the note being' identified with an act before J. C. Wonck, notary public, of the same date, and by which Mitchell mortgaged and hypothecated ■ the above described, property in favor of Frank W. Ellerman, or any future holder to-secure the note.

That on the 28th of October, 1897, the bank, in the absence of its-regular attorneys, handed to the above counsel the mortgage note, requesting him to have executory x>roeess issue upon the same. That the counsel, aware of the absence of said directors of the bank from the city, and without being instructed by the president of the bank, but acting on his own motion, and solely for the pulióse of more con-necessary to bid it in at the sheriff’s sale of the property, bid it in in the name of James M. Pagaud, who was the cashier of the bank, and had the Civil Sheriff of the parish of Orleans make title to him on the 23d of December, 1897.

That said counsel was not informed, and did not know7 of the-minor’s mortgage against James M. Pagaud, nor of its inscription against the property. That Pagaud is, and was at the time, cashier of" the bank, but never had, nor had he any interest, direct or indirect, in either of the notes nor in the property, nor in the bank’s mortgage which rested upon it.

That, as a precautionary measure against the death of Pagaud, a' counter- letter was duly executed by him at the time of sale, and delivered to the bank, recognizing the bank as the sole owner of the' property.

That upon the bank finding’ a purchaser for the property the certificate of mortgage requested by the purchaser showed an inscription of the minor’s general mortgage against the property.

That, as the property never belonged to Pagaud, who never had, or has now, the least right, title or interest in or to the same, it belonging' solely or exclusively to the bank, it was obvious the minor’s-mortgage was not legally attached, to the property, merely because it happened to be temporarily in the possession of the co-tutor.

After hearing, the lower court rendered judgment making the rule .absolute, and directing the recorder of mortgages for the parish of ■Orleans to erase and cancel the mortgage above referred to.

The defendants, in rule, thereupon took an appeal to this court.

The evidence shows that in October, 1897, the Whitney National Bank was the owner of a certain promissory note for five thousand dollars, made and subscribed by W. G. Mitchell, to his own order, and by himself endorsed, dated December 18, 1892, and payable one year after date, which note was secured by special mortgage on certain property in the city of New Orleans. That on the 16th of October, 1897, this note and mortgage being still owned by the bank, were handed by Mr. Whitney, one of its directors, to H. IT. ITall, Esq., attorney at law, for foreclosure, the regular attorney of the bank being absent at that time. That Mr. Hall instituted proceedings by way of executory process against the property in the name of James M. Pagaud (who was then cashier of the bank) instead of in the name of the bank itself. That these proceedings culminated in a judicial sale on the 23d of December, 1897, at which the Civil Sheriff adjudicated the property to Harry H. Hall for account of James M. Pagaud, as being the last and highest bidder. That a sheriff's deed of the property was executed by the sheriff on the 7th of January, 1898, and was recorded on the same day in the conveyance office of the city of New Orleans. That in the meantime, on the very day of the adjudication (23d December, 1897), Mr. Pagaud signed an instrument in which he declared that “whereas, at a sale made on the 23d day of December, 1897, in the suit of James M. Pagaud vs. W. G. Mitchell, he, Pagaud, plaintiff in said suit, became the adjudicatee and pur■chaser of certain property which he described (being the property mortgaged to secure the debt, and seized and sold to pay the same). Now, therefore, he, the said Pagaud, thereby acknowledged in the presence of the undersigned witnesses that he had purchased- said property and held the same for the account of the Whitney National Bank, of New Orleans, and he thereby bound himself to make it a -deed and transfer of the same without further consideration whenever thereto requested. This act was signed by 0. S. West and Geo. ■Q. Whitney, as witnesses, and was acknowledged by Pagaud on the 18th of January, 1897, before A. O. Lapice, notary. It does not appear to have been recorded.

The sheriff’s deed was signed by Prank Marquez, Civil Sheriff, in the presence of Ernest Ricker and 0 IT. Baudeau, as witnesses, but-was signed by neither Hall nor Pagaud.

The bank having found a purchaser for the property, the recorder of mortgages, at the instance of parties, furnished a certificate of the-mortgages affecting the property in the name of James M. Pagaud,. from which it appeared that it was affected by general mortgage to secure eighty-three thousand two hundred and thirteen dollars in favor of his step-daughter, the minor, Olive Manson, resulting from James M. Pagaud’s being co-tutor with his wife of said minor Olive Manson, said mortgage dating from the 5th of April, 1897.

Upon ascertaining this fact, the Whitney Bank took out the rule against Mrs. Lizzie I). Oliver, wife of James M. Pagaud, Janies M. Pagaud, co-tutor, and James J. Manson, undertutor, of the minor, from the judgment upon which rule this appeal was taken.

The bank propounded interrogatories on facts and articles to Janies M. Pagaud and his wife, who answered the same under oath, declaring that neither the minor, Olive Manson, nor the succession of Robert Manson, nor Mrs. Janies M. Pagaud, had then, or ever had, the slightest interest, right, title, or ownership, in or to said property, or any claim against the same. That true it was the adjudication of the property was made to James M. Pagaud, cashier of the Whitney National Bank, but it was simply as a matter of convenience for account of such bank, and James M. Pagaud had not then, nor had he ever had in the said property, any claim thereto, nor the slightest interest in and to the notes, by virtue of which said property was-sold, said notes having belonged exclusively to the Whitney National Bank.

Mr. Hall testified that the note and mortgage which were foreclosed were handed to him for that purpose; that he caused executory process to issue. That he was informed that the Board of Directors of' the bank did not have a quorum by reason of the fever prevailing in New Orleans; that when the property was adjudicated he, of his own motion, simply as a matter of convenience, and acting solely as the attorney of the bank, the only party in interest, bid in the property in the name of James M. Pagaud, who was the cashier of the bank.

That the title should have been made to the bank, and would have-been made to the bank, but be thought the lack of a quorum might throw an obstacle in the way of a prompt sale; that he expected to be .able to transfer the property from the bank to a Mr. Fisher as soon as it had title; that he was not, of course, aware that any judgment or mortgages of any kind were recorded against Mr. Pagaud, nor did Mr. Pagaud mention the matter to him; that Mr. Pagaud had no individual interest of any kind whatever either in the notes in question nor in the property; nor did he (Mr. Hall) represent Mr. Pagaud. That the entire matter was entrusted to him (Mr. Hall) by the Whitney National Bank, the sole party in interest, and he acted exclusively for the bank; that he did not consult the Whitney National Bank in this adjudication. James M. Pagaud, on the stand as an ordinary witness, testified that the note which was foreclosed belonged to the Whitney National Bank; that it was given to it by Mitchell for a loan of money to him; that he (Pagaud) had no interest in the note; that he was not aware, at the time, of the adjudication of the property to him, that the property was to be placed in his name; that he heard of it afterward; that he had no interest whatever in this transaction from beginning to end, nor in the property purchased.

Mr. Hayden, president of the Whitney National Bank, stated that on the 17th of June, 1896, the Whitney National Bank loaned W. G. Mitchell five thousand dollars, and to secure said loan he pledged to the bank the promissory note in question; that James M. Pagaud had no interest whatever in it, or in the property, directly or indirectly; that at the time of the foreclosure of the mortgage the yellow fever was prevailing in New Orleans, and all the directors of the bank were absent but one or two; that there was not a quorum in the city; that the Board of Directors had no meeting at that time; it was impossible.

The evidence is conclusive that at no time had James M. Pagaud, in point of fact, an interest either in the note foreclosed- upon in the suit of Pagaud vs. Mitchell, or in the property which was judicially sold in the suit, though the title to the same was, by direction of Mr.. Hall, placed in his name. Mr. Pagaud was not aware, when the adjudication was made, that it was proposed to make him appear as adjudicatee, and on the very day of the adjudication, and 'before the sheriff’s deed was made out or recorded, he had signed an instrument in which he explicitly stated that though the title was in his name, he held it for account of the bank.

Mr. Hall was not authorized by the bank to institute proceedings in the name of Mr. Pagaud, nor authorized to place the property in Mr. Pagaucl’s name, either by the Whitney National Bank or by Mr. Pagaud himself. The sheriff’s deed was not signed by Mr. Pagaud, and there is no evidence anywhere connecting him (to this day) with the adjudication besides the recitals of the deed to which he was not a party other than the counter letter which, while recognizing that the title had been taken in his name, in the very same instrument disclosed that he had never been the owner of the property, but that he held it for account of the Whitney Bank.

lie never consented to be the owner of the property, or to incur the liability on his part, which would have resulted had he become the adjudicatee at the judicial sale. Had any one caused the counter letter to have been recorded, with a view of attempting to show a written consent by Mr. Pagaud of Mr. Hall’s action, the instrument would show a disclaimer of title, and not an acceptance of ownershij) or ratification of the adjudication as made.

At all events the first and only act of Mr. Pagaud himself connecting him with the transaction would, while showing the placing the title in his name, disclose simultaneously that he was not and had not been the owner (Gaillard vs. Nicholas, 9 An. 170). Had the Whitney Bank, on ascertaining that the adjudication had been made in the name of Pagaud, called upon him for the price, and he had refused to pay, denying the authority of Mr. Hall to act for him in making the purchase, and refusing to take any action whatever in respect to the matter, and thereupon the bank had instituted a suit against him (making the tutor and co-tutor and undertutor of the minor, Olive Manson, parties), alleging that ho had never paid the purchase price and disclaimed ownership under the adjudication, and had prayed, in view of the promises, that the adjudication be decreed to have been to the Whitney Bank, and that Pagaud was not the adjudicatee, and had never had any interest in the property, and had the court rendered a decree as prayed for, wo think that that portion •of the decree which declared that Pagaud was not the adjudicatee, and that he had never had any interest in the property, would have •effectually barred and disposed of any claim made for or in behalf of the minor, Olive Manson, that the property was struck by the general mortgages in favor of that minor, securing the faithful administration of her property by her mother as natural tutor, and her step-father, .Pagaud, as eo-tutor, by reason of tbe fact that the title had stood registered under such circumstances in the name of Pagaud. The effect of the mere registry, would not have been so potent as to vest in her a mortgage, when in point of fact the property had never belonged to the co-tutor, and he not only had never assumed ownership in it, but had, .ab initio, recognized the property as belonging to the bank. This .suit, though not precisely in that form, is one substantially to the .same effect.

The undertutor contends that, under the decision in Life Association of America vs. Hall, 33 An. 49, the minor’s mortgage can not be' removed in the manner attempted here; that it can only be removed .by the giving- oí a special mortgage to the minor on other property.

The decision in that case has no bearing- in this.

We are not dealing now with a case where a mortgage existing in point of fact, in favor of a mortgagee, an attempt is being made to get rid of it, but with one where it is denied that the mortgage ever had .any existence at all, and the prayer is for a decree to that effect.

The uudertutpr further claims that actual ownership in property is not essential to the existence of a mortgage against it in the name of .the person in whose name it stands registered. That if a person places property in the name of another, or permits him to appear on the public records as owner when he is not the actual owner, he is estopped from claiming ownership as against parties who have dealt in good faith with the apparent owner on the strength of the public records; that the apparent must be taken for all legal purposes as the .actual owner. That when registry is once made in the name of a merely apparent owner, and rights spring into existence from that ■ state of facts, counter letters acknowledging the actual facts avail nothing against them. lie cites Article 2239 of the Civil Code which • declares that “counter letters can have no effect against creditors or ■ bona fide purchasers; they are valid as to all others,” and he refers the • court to Bach vs. Abbott, 6 An. 809, and to Stockton vs. Craddick, 4 An. 282.

There is uo question that if the actual owner places the title of his ■property in that of another person, and permits property actually his to stand on the records as that of another person, he must respect the ■rights of parties who have dealt in good faith with the apparent owner •on the faith of the public records, and by reason of a condition of rfclihigs superinduced or permitted by himself, and that whatever rights he has, must be subordinated to those of those innocent third parties(Mercier vs. Canonge, 8 An. 37), and there is no doubt that if this situation exists, it can not be undone by means of counter letters subsequently placed on record (Stewart vs. Newton, 12 An. 622 — Succession of Tabary, 31 An. 415). But this case is presented to us under an exceptional state of facts and exceptional conditions, and also freed from all questions of fraud or wrong doing, the good faith of all parties being conceded.

There is no doubt that if the Whitney Bank should permit the title to this property to remain on the records as that of Pagaud, and he should sell or conventionally .mortgage the same as his property to-parties dealing bona fide with him as owner, that such sale or such mortgage would prevail over any rights of the bank. So, also, if parties should enter into contracts with Pagaud, dealing with him in making the same on the strength of the real property supposed to be owned by him by reason of the public records, and these parties should obtain judgments and record them prior to the recording of counter letter; that these judicial mortgages would prime the rights of the bank; but neither this minor, nor any one acting in her behalf, has-dealt with Pagaud on the strength of the records, showing the latter to be the ostensible owner of the property. The mother of the 'minor was entitled, absolutely) to be confirmed her natural tutrix without reference to any question as to whether she had, or had not, property. The subsequent marriage of Pagaud with the mother of the minor carried with it, as a consequence, his co-tutorship of his step-daughter. The tutorship and the co-tutorship preceded by a number of months the judicial sale made in the proceedings against Mitchell, and therefore no action of any kind touching the minor’s interests was in point of fact predicated upon Pagaud’s being the owner of the property. If the minor’s mortgage were to attach, it would not be by reason of any equities in favor of the minor, but by reason of the court’s holding, that the registry law carried with it- the attaching of the mortgage as-the inexorable and unavoidable consequence ipso facto of the fact of’ the registry of the adjudication in the name of Pagaud, independently of any question as to whether he was actually the owner or not; whether the adjudication made to him had been so made either with his knowledge and consent, or with that of the seizing creditor, and' regardless of any special facts or circumstances connected with the-transaction. We are not prepared to give to the registry laws the sweeping effect contended for. The mortgage in favor of minors is-not the result of contracts or dealings of parties with each other. It is-created and given by the law itself. By Article 3314 of the Civil Code-it is declared that minors have a legal mortgage on the property of their tutors as a security for their administration, and by Article 322' of the Civil Code that “the recording of the tutor’s bond, or the certificate of the clerk, which the law requires in the case of the appointment of tutor, operates as a legal mortgage in favor of the minor for the amount therein stated on all the immovable property of the tutor.”

The object fixed by the law, as that to be affected by this mortgage, is not property apparently belonging to the tutor, but “the property of the tutor.” (Broussard vs. Sheriff, 44 An. 883.)

There may be cases where property apparently belonging to tutors-would and should be properly charged with such a mortgage, hut there-are others where, by reason of their special facts, the law should not be extended beyond its exact terms, and where the situation should he-confined to the property designated by itself as to be affected; that-is, to the property actually belonging to the tutor, and we think the present to be one of such cases. It would be unjust and inequitable,, under the circumstances developed by the evidence, to hold this-property to have ever been affected by the minor’s mortgage.

For the reasons assigned, it is hereby ordered, adjudged and decreed,. that the judgment appealed from be affirmed.


author: Niciiolls, C. J.

text:
    No. 12,935.
    State of Louisiana vs. Samuel Robertson.
    Syllabus.
    A request by a jury to the Judge, communicated through a deputy sheriff, for information, and refusal of the Judge to communicate with the jury save in open court, the request and refusal having been made in the presence of the accused while the court was in session and the jury deliberating in the jury room, do not invalidate the trial and verdict.
    ON APPEAL from the Eleventh Judicial District Court for the-Parish of St. Landry. Duprk, J.

      M. J. Cunningham, Attorney General, and li. Lee Garland, District .Attorney for Plaintiff, Appellee.

      John N. Ogden for Defendant, Appellant.
    Argued and submitted December 10, 1898.
    Opinion handed down January 10, 1899.
    Rehearing refused January 23, 1899.
   The opinion of the court was delivered by

Niciiolls, C. J.

The defendant, convicted of manslaughter and .sentenced to eight months’ imprisonment in the penitentiary, has appealed.

He complains that while the jury were deliberating upon their verdict in’the jury room, a private message was sent by one of the .jurors, through the deputy sheriff in charge of the jury, to the judge of the court, and a private message was sent by the judge to the jury, through the deputy sheriff, and, immediately thereafter, the jury reached a verdict to the great prejudice and detriment of the accused.

The same complaint was urged by appellant in the District Court •on a motion for a new trial. It was held by the court to be unfounded, and the application for a new trial was refused on the ground that the testimony showed that the “judge had refused to communicate with the jury.”

The testimony taken on this motion, which is annexed to the bill of ■exceptions reserved by defendant, shows that while the jury were in their rooms deliberating as to their verdict, the deputy sheriff in attendance upon them was called to the door of the room by a rap from within. Answering the call, he was asked by one of the jurors (Mr. Ilaas) to submit to the judge “what could, be the least sentence there could be in the case.” That the deputy sheriff complied with the request, and he was told by the judge to tell them “he could give them ■no instructions 'on that point.” That returning to the door of the. jury room he gave the answer to Mr. Haas, who laughed' and said “he-knew it at the time.”

That the whole of this occurred iuside of the court room, while the court was in session.

The deputy sheriff testified that the judge on receiving the message-told him, further, that “if they wanted further instructions they would have to come out, and Mr. Haas answered that 'it was not necessary.” In answer to a question as to the tone in.which the message was communicated to the judge and answered by him, whether the conversation was in a low tone, such as could not be overheard by the accused party or his counsel, the witness said that if their attention had been directed to himself and the judge, he thought either could have heard it.

The district judge testified that Mr. Cochran, the deputy sheriff,, going up to him stated that “one of the jurors (Oapt. Haas) desired to know the least penalty that could be inflicted upon the accused in the event of a conviction for manslaughter;” that he replied, “he could, not answer that question; that he could have no communication while they were in the. jury room;” that “Mr. Cochran went directly to the room where the jury .were deliberating, and before he could determine-whether he should call the jury in and ask them if they needed further instructions, or whether he should wait upon them for such a message, the bell tapped, announcing their readiness to announce a verdict.”

Counsel for appellant disclaimed in open court, making any contention that any improper conversation took place at the door of the-jury room between the juror Haas and the deputy sheriff.

In his brief, he says: “No matter whether there was injury or not (although we claim that there was), the time, manner and place, the-low conversation between the sheriff and the judge, and the second conversation between the deputy sheriff and the juror took place all in a low tone, are sufficient to set aside the proceedings.”

We are of a different opinion. The place was in the court of St. Landry, and the time an open session of court, while the conversation, instead of being a private message communicated in a low tone,. as asserted, was an official message from the jury to the judge, and from the judge to the jury, conveyed in an ordinary tone of voice, through the official charged with the performance of duties of that character.

The court has been referred to the case of the State vs. Frisby, 19 An. 143, as supporting- the position contended for in this case by the •defendant, but the present case differs from the former in the all important fact that the district judge refused, in the present case, to ■ convey instructions of any kind to the jury, whereas, in the Erisby ■ case, he did the very reverse.

We do not see in what way the district judge could have acted ■differently from what he did, and we see no ground for reversal.,

It is unnecessary to pass upon the question whether the court erred in refusing to allow the juror Ross to testify as to the facts set up in the motion for a new trial, inasmuch as those facts were fully dis■closed by the deputy sheriff and the judge as witnesses.

That witness’ testimony, if admitted, would have only been cumulative.

The judgment appealed from must be, and is hereby affirmed.


author: Watkins, J.

text:
    No. 12,908.
    L. J. Mestier & Co. vs. A. Chevallier Pavement Company, Limited.
    Syllabus.
    'Tlie general rule is, that an appeal is admissible from an interlecutory order appointing a receiver as same may work an irreparable injury; but a receiver can not be legally appointed by an ew parte order in a pending suit.
    ON APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      E. Evariste Moise, G. F. Socola and John Wagner for Plaintiffs, mid Appellees.

      Henry Ghiapella, Dinkelspiel & Hart for Defendant and Appellant.

      Submitted upon Motion to Dismiss, and upon Merits, December 7, 1898.
    Opinion handed down December 19, 1898.
    Rehearing refused January 23, 1899.
   Motion to Dismiss Appeal.

The opinion of the court was delivered by

Watkins, J.

The order appointing- a receiver was granted by the ■district judge in a pending suit wherein a writ of judicial sequestration had been previously ordered by him as a conservatory measure, •on the request of the plaintiff, and without consent of the defendant, ■either express or implied.

The ground on which plaintiffs and appellees request the dismissal ■of the defendant’s appeal is that the appeal having been taken from an order appointing a receiver, it can not be allowed to stand because same is an interlocutory decree, which does not cause an irreparable injury.

That, as it was a supplementary order to that granting a writ of judicial sequestration, its issuance was within the discretionary power of the district judge, with which the Supreme Court will not interfere.

In other words, that the receiver was only appointed to take charge and dispose of a few things, and not for the liquidation of the corporation.

In our opinion, this does not belong to the class of cases this court had under consideration in Brewing Company vs. Judge, 46 An. 100, and Harrod vs. Sewerage Company, 49 An. 1595.

These decisions held that an order appointing a receiver is not appealable when the record discloses that same was procured or acquiesced in subsequently by a formal act or resolution of the corporation, to which the receiver is appointed.

A judgment or interlocutory decree which has been acquiesced in is non-appealable (C. P. 567).

The interlocutory order appointing a receiver in this suit is not, perhaps, injurious per se, and has not wrought the defendant corporation an irreparable injury that is apparent. Non constat, that it may not do so in the future; and that it may do so is sufficient to entitle-it to a hearing- on appeal (C. P. 566.). State ex rel. Morey vs Judge, 31 An. 824; Levine vs. Michell 34 An. 1181; Comminge vs. Judge, 29 An. 360; Jure vs. City, 2 An. 321; Crescent City Live Stock Co. vs. Police Jury, 32 An. 1192; State ex rel. Sigur vs. Judge, 33 An. 133; Osgood vs. Black, 33 An. 493; Anderson vs. Smith, 28 An. 649; State ex rel. Gravois vs. Judge, 33 An. 160.

The general rule is that a suspensive appeal will lie from a judgment appointing a receiver. Metropolitan Bank vs. Commercial Soap, Candle and Starch Manufactory, 48 An. 1883.

In re Moss Cigar Co. Limited, on rehearing, 23 So. Rep 544, the right of appeal from an order appointing a receiver was recognized, and the decisions in State vs. King, and Harrod vs. Sewerage Co., were differenced from the general rule which obtains in ordinary cases. Enet vs. His Creditors, 4 Martin 308; Martin vs. Blanchin, 16 An. 83.

The motion to dismiss is denied.

On the Merits.

The record discloses the fact, that, notwithstanding the prayer of plaintiff’s petition, demands,- amongst other things, that the defendant “show cause why this court should not appoint an officer as re- “ cciver, custodian, judicial sequestrator, or otherwise, to take into his possession and control, all of the said property, etc.,” and an order was subsequently made, on the motion of plaintiffs, granting a judicial sequestration of the assets and property of the corporation, the court-made and entered a still later order appointing a receiver for the defendant corporation upon the ex parte application of the plaintiff,, during the pendency of the suit, and he at once took and subscribed the necessary oath, gave bond and entered upon the discharge of the duties of that office.

It is from that order that this appeal is prosecuted, and the question-for decision is, whether a receiver can bo thus appointed.

Wo think not. The trend of authority is just the other way.

In Baker vs. Portable R. R. Co., 34th Ann. 754, on a careful review of adjudicated eases it was held, that the power of courts in Louisiana to appoint receivers is exceptional and limited.

In Frazier vs. Wilcox, 4 Robinson, 517, the court said:

“We are not to be understood as giving- our sanction to an opinion “ sometimes expressed, that the judges of the inferior courts, with- “ out the assent of the parties to a suit, or with the consent of only one “ of them, can exercise the powers of a chancellor and appoint of their “ own accord, receivers for the purpose of collecting and keeping the “ funds attached, or that may be the subject of litigation.”

The same doctrine was announced and reiterated in United States vs. The United States Bank, 11 Robinson, 418.

In Martin vs. Blanchin, 16th Ann. 237, it was held not to be within the authority of the District Court to appoint ex parte a receiver of assets belonging to a partnership; and the court said, that the proper course was, either to obtain a writ of sequestration, or a rule on the defendants to concur in the appointment of a receiver by the parties.

In the present ease the plaintiffs demanded and secured an order for the issuance of a writ of judicial sequestration of the assets of the-corporation, and caused the sheriff to take same into his custody; and subsequently he demanded and obtained an ex parte order appointing a receiver.

In State ex rel. Brittin vs. City, 43rd Ann. 829, this court said after carefully reviewing all the decisions of this court, viz:

“No principle of law is better settled than that courts have no-“power to appoint receivers ex parte without notice or hearing of the ' “ party in interest, and unless a basis for the appointment is alleged' “ and proved.”

See High on Receivers, Secs. 17; 111; 115.

The right of courts to grant writs of judicial sequestration pendente lite was distinctly recognized in Eltringham vs. Clark & Pringle, 49th Ann. 343; also, in Allen West & Bush vs. Whetstone, 35th Ann. 846.

But we are aware of no authority for the appointment of a receiver-ex parte in a pending suit against a corporation as appears to have been done in this case.

Our conclusion is to annul the order appointing the receiver, and' remand the canse to the District Court for further proceedings according to law.

It is therefore ordered and decreed, that the interlocutory order,appointing a receiver be and the same is hereby annulled and revoked;. and it is further ordered and decreed that the cause be remanded to the lower court for further proceeding's according to law — the costs of appeal to be taxed against the plaintiffs and appellees, and those of the court below to await its final action thereon.

Breaux, J., dissents.

Nioholls, 0. J., absent.


author: Breaux, J.

text:
    No. 12,889
    Thomas Conway vs. The New Orleans City and Lake Rail Road Co.
    The West End passenger train of the defendant company came to its stopping place on Canal street, where it was when plaintiff walked up to the train and turned to the right in order to board the smoking ear at the end of the train. An electric car of the defendant company ran on its track, which was near the steam train. The projection of the electric car and the projection of the steam train (toward each other), made very narrow the path upon which plaintiff was walking, with his back to the electric ear, by which he was knocked down, and greatly injured.
    The rule as to looking and listening had no application. About mid-day, de fendant’s motorman did not see plaintiff, who was walking in front, in a dangerous position, because of his advancing car. It was his duty to keep a sharp lookout and see pedestrians at the place on their way to board the cars. No gong was sounded and no alarm.
    There was no proper care on the part of the employe in charge of defendant's electric car. Such care and diligence must be exercised at dangerous places on a railway to avoid inflicting injury, as the proper manning of a car requires.
    ON APPEAL from, the Civil District Court for the Parish of Orleans. Ellis, J.

      W. H. Rogers and 0. S. Dodds for Plaintiff and Appellee.

      Denegre, Blair é Denegre for Defendant and Appellant.
    Argued and submitted December 1, 1898,

      Opinion handed down December 19, 1898.
    Rehearing refused January 23, 1899.
   The opinion of the court was delivered by

Breaux, J.

This was au action to recover damages, for the Joss of plaintiff’s leg. The defense pleaded the general denial and negligence of plaintiff.

On the day the accident occurred, being All Saints’ Day, many persons were visiting the cemeteries. Plaintiff, about noon, .repaired to Canal street, intending to go to the cemeteries. 'He left the corner of Baronne street and walked toward the first coach of the defendant’s steam train. Only two witnesses saw the accident; the plaintiff himself and one of the witnesses of the defendant.

The plaintiff testified, as just stated, that he left the corner of Baronne street and walked to the first coach and inquired of the conductor of the Lake steam train, how long it would he before it started. Ten minutes was the answer. Whereupon plaintiff said: “I will go with you,” and walked along the side of the cars near the train, a distance of about one hundred and fifty feet toward the river, for the purx>ose of boarding a “smoker” car, when he was struck on the right side and was knocked down by an electric car of tbe defendant and bis leg crushed by one of the front wheels, rendering amputation necessary.

The steam ear he was about to board stands between Baronne and Oarondelet streets on the neutral ground and he was walking between the tracks near the lake train; his back was toward the car that struck him.

The plaintiff also stated that on turning to his right to walk a distance along the train, between the tracks, as before noted, he looked toward the cemeteries to see if any car was coming on the track near the steam train he was about to board, but that when he walked on the neutral ground on the side of the train he did not keep a lookout for the reason that he was not walking on the track of an incoming car.

A rough sketch of the place shows that the track over which- the -plaintiff walked measured four and a half-feet, and that the projecting side of the steam train and electric cars, when opposite one another,, measured eighteen inches.

The defendant controverts plaintiff’s contention regarding its depot,, and avers that the neutral ground is not private property; that it has no control over it.

The facts as relates to defendant’s case, as testified to by defendant’s-witness, who, with the plaintiff himself, are the only witnesses who-were present when the accident occurred, are, in substance, that the injury was caused by plaintiff attempting to re-cross the track in front of an incoming car, immediately after he had crossed it, untouched.

In support of the testimony of its witness, defendant’s counsel referred to the evidence showing that on the day the accident occurred, owing to the large 'number of persons, going to or returning from the cemeteries, there were many cars, one hundred per hour, it was said, due at a given point on the track, i. e. one car every thirty-six seconds, and that in the nature of things the plaintiff, in an ordinary walk,, would have been struck by some other car ahead of the one which injured him.

The defendant offered, the testimony of plaintiff in the Recorder’s-Court, taken a comparatively short time after the accident, in a case brought there to hold the motorman responsible in a criminal action, for the purpose of proving the contradictory statements of the plaintiff on a vital point of the case.

The evidence of record also shows that defendant’s cars were located on Canal street by the city engineer with the approval of the city authorities.

The case was heard by a jury. Their verdict was for eight thousand five hundred dollars in favor of plaintiff. From the verdict and judgment defendant prosecutes the appeal.

We have seen that only two witnesses testified as to how the accident happened: the plaintiff and one of the defendant’s witnesses.

They greatly differ in their account.

The first question for our determination is as to which state of facts is correct.

The jury must have found, in order to return their verdict, and the trial judge in signing the judgment, that plaintiff was walking along-the car on his way to the smoking car when he was struck.

They heard the testimony and had the opportunity personally, while the witnesses were in their presence, to judge of their credibility.

We are inclined to accept their theory as correct, not only because •of the verdict, but, because in reading the testimony of the witnesses it (the verdict) appeared to us to have been correctly returned to the extent stated in our decree.

He (witness for defendant) does not appear to us as having been, as relates to the accident, a very close and careful observer. For instance, he testified that the ears of defendant; the steam dummy on •one track, and the electric car on the other, were four or five feet apart when standing' together, or when passing each other at the place where the accident occurred, while, in fact, the space between the cars was eighteen inches, nor did he see the plaintiff at the very moment he was struck by the car, but he stated he thought that he was struck by tjie step of the car.

In our view, the parts of the body wounded, as shown by the testimony of physicians by -whom plaintiff was attended, are not corrobor.ative of the statement.

While we have no reason to question the sincerity of the witness, liis testimony given in a language in which he was not very conversant, (English was not his mother tongue), has not impressed us to the extent needful to set aside, on this point, the jury’s verdict.

The great number of moving trains on the day the accident occurred, and the time table of the defendant company, do not, in our judgment, do away with plaintiff’s absolute statement in substance that no other car passed him while he was walking over the 150 feet of ground along the dummy to the smoking car.

This brings us to the question of the contributory negligence vel non of plaintiff.

We take it that the statement of plaintiff, that he did not keep a lookout when he went along the neutral ground and walked down the side of the train to board it, is free from error; that the plaintiff had surely walked a distance of about one hundred and fifty feet without turning to see if there was an approaching car on the track to his right as he was walking.

We have given most careful attention to the case from that point of view.

Plaintiff did not, at the moment, suspect the threatening danger. He admits, had he looked he would have had no trouble in seeing the car approaching him. There was forgetfulness, it is true, on his part, just prior to the accident, in his listlessly walking, as he did; whether it was enough to defeat his right of recovery is a question to be hereafter determined.

Even if one should usually “look and listen,” yet, if the servant or agent should have seen the danger, it is negligence not to have seen it, and applied himself, as far as possible, to avoid the accident. (Moreover the plaintiff was on the passage way from which passengers board, the train. These reasons, we think, take the case out of the rule requiring one “to look and listen.”)

We take up for consideration the question of the negligence of the motorman in charge of the car which struck plaintiff. He was at the time looking towards the river, right ahead, he says, and did not see the plaintiff at all, before he heard some one hallooing', whereupon he looked to the north side of his car and saw plaintiff who had been knocked down lying under the ear.

Not to have seen this old gentleman, the plaintiff, on a clear day, walking in so dangerous a place, was culpable negligence. It must be borne in mind that passengers were invited to board the train from the space over which plaintiff was walking at the time. It devolved upon the employes of the defendant company to be careful; to run slowly at this place and to look on the entire front of the advancing car, and to exert a timely care toward protecting persons in dangerous proximity to the car.

The space having been reduced as we have already seen, by defendant’s ear, from four and a half feet to eighteen inches, it devolved upon its employes to be careful and watchful.

It does seen that with ordinary prudence and watchfulness the plaintiff would have been seen by the one in charge of the advancing car. Not to have seen him, in our judgment, makes it evident that there was a want of even ordinary care. If the employe had exercised the care required, the accident might have been avoided. It certanly devolved upon defendant’s agents to carefully look.

Any other rule would afford scant protection to the public and would give protection to indifference where there should be watchfulness. There can be no serious objection to the nearness of the tracks to each other. It is unavoidable, none the less if a proximate track gives rise to more than ordinary danger; such danger should be met by corresponding precaution. Instead of care and caution which should have-been exercised in passing the steam train, the record reveals that the motorman never saw plaintiff who was walking in a dangerous path between the cars; that there was no sounding of the gong; nor the least warning of approaching- danger.

The defendant and its employes upon such an occasion, particularly when there were many passengers and a number of persons on the street, owed to the public reasonable care and diligence. It was the duty of this motorman to be on the constant lookout when passing the narrow strip between his car and the West End steam train; the stopping- place of the latter. The time, about mid-day in November, the place, a dangerous way, where passengers frequently boarded the train which the plaintiff was seeking to board, the duty to be on the lookout and give warning when there was danger of accidents, all made it obligatory upon defendant’s motorman to be on the alert. By the use of ordinary care might not the defendant have known that plaintiff was in an exposed position which rendered it proper to give warning and even, at this particular place, cheek its car a little?

In our judgment, there was not sufficient care and caution taken to avoid the accident, and in consequence, we think that the defendant is liable.

Plaintiff, it is true, was in an exposed position which called for more than ordinary prudence in his movements, yet he was invited to the place where the accident occurred, and notwithstanding a slight inattention, he should not have been subject to the risk of severe injury by the negligence of the workman.

The plaintiff had the right to assume when about to step on the train that he would not be injured by another, an incoming car of the defendant.

The amount of the damages presents the next question before us for determination.

In our judgment it should be less than the amount found by the jury, in order to bring it within the rule which generally governs in fixing damages.

We have, as relates to damages, given due weight to all the facts of the case, and we think that under the circumstances and under our jurisprudence, that the amount should be reduced to six thousand dollars.

For reasons assigned, it is ordered, adjudged and decreed, that the judgment appealed from be amended by reducing the amount of the ■verdict and judgment herein rendered in favor of the plaintiff from .eight thousand, five hundred dollars to six thousand dollars, with interest from date of the decree in the lower court on the amount just stated.

Nicholls, O. J., absent.


text:
    No. 12,936.
    Louis Spiro vs. Widow D. Leibenguth, and Mr. and Mrs. Thomas Ruiz, Mr. and Mrs. Charles Stokes, Mr. and Mrs. Ed. Levi, Mr. and Mrs. Walter Hart, Miss Catherine Leibenguth and Emile Leibenguth, In Solido.

    The property upon which there was already a vendor’s privilege, was sold to the creditor whose right was secured, as to its payment, by that privilege.
    The creditor immediately sold it back to the debtor; his vendee surrendered his note and took new notes, (identified with the act of sale) for the amount due, secured by a vendor’s privilege.
    The amount was the same from the first, and was secured by a vendor’s privilege.
    There was no intention on the part of anyone to novate the obligation, and it ’ was not novated.
    In order to hold a privilege for amount due a physician for services during the last illness, it must be shown that such services were actually rendered during the last illness.
    ON APPEAL from the Civil District Court for the parish of Orleans. King, J.

      Harold W. Newman for Plaintiff and Appellee.

      B. A. Tichenor for Mrs. Widow L. Leibenguth and Mrs. Thomas Euiz, Intervenors and Third Opponents, Appellants.
    Argued and submitted December 24, 1898.

      Opinion handed down January 9, 1899.
    Rehearing refused January 23, 1899.
   The opinion of the court was delivered by

Breaux, J.

This was an action of intervention and third opposition by a widow in necessitous circumstances, to recover one thousand dollars out of the estate of her husband and father of her minor children, also to have decreed null a vendor’s privilege resting on the property on which she claims a privilege as just stated.

There were two third oppositions filed, claiming preference over the proceeds of the property offered for sale by public auction m foreclosure proceedings.

The second petition of intervention and third opposition was by one claiming a privilege as creditor of the succession of the deceased, being for funeral expenses and physician’s services rendered, it is alleged, during the last illness of the late owner of the property seized and sold.

IVe take up for decision in the first place, the question growing out of the claims of the widow in necessitous circumstances from the alleged necessitous widow’s claim.

The property on which privilege is claimed, was sold to the late Daniel Leibcnguth on the 1st of September, 1895, for three thousand five hundred dollars. Cash — one thousand dollars, and for the remainder, the vendee executed promissory notes, payable in one and two years, secured as to their payment by mortgage and vendor's privilege.

The holder of these notes, some time afterward, borrowed money, and gave his own note and the notes just referred to as security for the amount.

When the amount became due, the debtor desired an extension, which the creditor accorded.

In order to obtain the extension, the debtor, i. the maker of the two notes secured by vendor’s privilege (the late husband of petitioner and third opponent), sold the property to the creditor, Spiro.

The same day, the creditor sold back the property to Daniel Leibenguth, opponent’s late husband.

The purchaser furnished his promissory note for the sum of two thousand three hundred and twenty dollars to the owner of vendor (which was the amount due him), and retained for its payment a mortgage and vendor’s privilege.

In these deeds it is declared that an amount of cash was paid.

There was no cash paid as shown by the testimony of witnesses, to the introduction of which no objection was offered.

The creditor has not been paid.

His vendors’ privilege remained and was not destroyed or affected by the change in the form of the obligation.

One may consent to the substitution of new notes without thereby novating the debt.

The first vendor’s privilege in favor of the creditors, continued in force.

We gather from the testimony that it was never the intention of the parties concerned to novate; without such intention is made evident in some way, there can be no novation.

A creditor who receives another note from his debtor in lieu of the old, does not thereby novate and extinguish the old debt.

There was no agreement looking to novation; on the contrary, we infer from the testimony, that all parties concerned were willing that the vendor’s privilege should remain secured on the property.

The new debt was given with the same security that the creditor previously had on the property. “The pre-existent obligation must be extinguished; if only modified, and any stipulation of the original obligation remains there is no novation.” Rosenda vs. Zabrizkie, 4 R. 493.

We have seen that the debt remained, and the vendor’s privilege by which it was secured; although there were changes made in the contract in order to get the delay the creditor desired.

We pass to the claim of Mrs. Euiz, interven or and third opponent, who also claims a preference on the proceeds of the sale of the property on the ground that she paid debts of the succession secured by privilege, first in rank, as they were amounts due for the physician’s services rendered to the deceased during the last illness and for the funeral.

As to, the former, the testimony does not show that they were for the last illness.

The receipted bill, in evidence, sets forth, that the services were-rendered to the family of the deceased and the testimony did not disclose that the receipt was not correct.

Charges, not for the last illness, it follows, are not privileged.

With reference to the funeral expenses: the next claim of third opponent.

Natural obligation springs from equity, and conscience, and are obligations imposed by reasons of humanity and for the good of family.

Erom that point, a natural obligation is placed upon the child to •. pay the funeral expenses for laying to rest his father and mother, who leaves no property.

It follows, that the debt paid in this case can not be recovered against a third person who is a creditor of the succession, and that would he the effect if the amount were deducted from the proceeds on which the third opponent claims a privilege for funeral expenses paid' by her.

Had it been paid by one, not an heir, it would be different.

Paid, however, by an heir, no action lies to compel a creditor to refund the amount from the proceeds of a sale on which he had a vendor’s privilege.

Natural obligation to pay an indebtedness of the succession excludes one from recovering the amount from the debt to a third person.

Judgment affirmed.

Nictiolls, C. J., absent.


text:
    No. 12,952.
    State of Louisiana vs. Calvin Guiton.
    The defendant was found guilty of having committed the offence of incest with, a daughter of his brother. The word “brother” includes a brother of the half-blood, and his daughter was the niece of the defendant.
    An information setting forth the crime in language equivalent to the language of the statute is not fatally defective.
    In the absence of a bill of exceptions, the Supreme Court assumes that the facts • showed to the satisfaction of the trial judge and jury, that the prosecution-was not barred by prescription.
    The Supreme Court will not interfere, where it appears that the trial judge was-satisfied from facts within his knowledge that the evidence was not newly-discovered evidence, and, that the defendant had not used diligence.

      ON APPEAL from the Ninth Judicial District Court for the parish of DeSoto. Hall, J.

      M. J. Cunningham, Attorney General, and J. B. Lee, District Attorney, for Plaintiff and Appellee.

      Elam é Egan for Defendant and Appellant.
    Submitted on briefs November 26, 1898.
    Opinion handed down December 19, 1898.
    Rehearing refused January 23, 1899.
   The opinion of the court was delivered by

Breaux, J.

An information was filed against the defendant on the 18th day of August, 1898, charging him with having committed the crime of incest with one Annie Lee Jackson, alleged to be his niece.

He was tried and found guilty.

From a sentence of ten years’ imprisonment in the penitentiary, he ■prosecutes this appeal.

It appears that the court charged the jury that a half niece was within the prohibited degree of consanguinity within which persons are prohibited from marrying and cohabiting, and that co-habitation 'between the half-uncle and half niece would constitute the crime of incest.

The woman in the case, Annie Lee Jackson, is the daughter of defendant’s half-brother.

In the bill of exception, filed to the judge’s charge, and on the motion for a new trial, the question arises whether one can co-habit with the daughter of his half-brother without being guilty of incest ?

Incest is denounced by reference to articles 94 and 95 of the Revised Civil Code in terms as follows:

“Whoever shall knowingly intermarry, or co-habit without marriage, being within the degrees of consanguinity within which marriage is prohibited, by Articles 94 and 95 of the Civil Code, shall be deemed guilty of incest.”

Act 78 of 1884.

Under the last of the just stated articles, “marriage is prohibited between brother and sister, whether of the whole or of the half-blood,, whether legitimate or illegitimate, and also between the uncle and the niece, the aunt and the nephew.”

It is urged, in behalf of the defendant, that in relation to brother and sister, the article 95 of the civil code cited supra, contains the explanatory phrase: “Whether of the whole or of the half blood; legitimate or illegitimate,” and that with reference to the ascending or descending line there is the phrase, “whether legitimate or illegitimate,” inserted in the preceding article 94, conveying a restricted meaning only as relates to “brother and sister” and the “ascending or descending line,” but that the use. of the words, “uncle” and “niece,” without qualification, do not include within its terms “uncles” and “nieces” of the half-blood. In fine, that “brother,” does not mean “half-brother” and that “uncle” does not include “half-uncle.”

It is true that the compilers of our code inserted the qualifying-words just stated. We incline to the opinion that “brother,” and “sister,” as used, would include brother and sister of the half-blood without the qualifying words of the articles of the code; that as relates to the crime charged, the half-blood are meant equally with the whple blood.

This view is sustained by a case decided in the State of Vermont, in which it was held, as indicated by the syllabus of the case, that the word “brother,” as used in the statute, against incest, includes a brother of the half-blood.

State vs. Wyman, 59 Vermont, p. 527.

The same conclusion is arrived at under the civil law as administered in France. There, marriage is prohibited between brother and sister, without the qualifying words found in our code. 162 C. N. Dalloz, Repertoire De Legislation, Vol. 31, p. 222, says: L’art 162 porte, en consequence, “qu’en ligne eollaterale le marriage est prohíbe entre le frere et la soeur legitimes ou naturels, et les allies au meme degre.” Peu importe, du reste, que les freres et soeurs soient germains, consanguins ou uterins; Fempechement est egalement absolu ■ dans ces divers cas.

It is well known that the brothers who have the same father but a ■ different mother are in French, brothers consanguins.

Two brothers who have the same mother, but not the samé father . are brothers, uterins that is, brothers of the half-blood.

The French authorities hold, that a statute prohibiting' marriage between brothers and sisters, equally applies to brothers and sisters .consanguin or brothers and sisters uterins only.

Why should not the same rule or canon of interpretation apply to .nephews and nieces, as relates to full blood or half-blood?

Even if it should be conceded that too broad a meaning is given to .the words “brother” and “sister,” and that if used alone, they do not mean “brothers” and “sisters” of the halfrblood; here in term brothers and sisters of the half-blood are included in the article followed by the words, “and also,” which refer, as we take it, to uncle and niece and the qualifying words just preceding “of the half-blood.” So, that in . our view, it is as if the statute read: Marriage is prohibited between brother and sister,' whether of the'whole or half-blood, “and also” uncle and niece whether of the whole or the half-blood.

A brother, as defined, is one who has the same father and mother with another, or has one of them only. The daughter is a niece in either case.

The defendant complains of the information as being- fatally defective. It charges that the defendant being' the uncle of Annie Lee Jackson and within the “prohibitory degrees” of consanguinity, did unlawfully and feloniously, and knowingly, live and co-habit with his niece, naming her, without marriage, the “same being prohibited, and • did knowingly and feloniously commit the crime of incest, raid that the same has not been made known to an officer,” etc.

The defendant says that he was not informed what the degrees of consanguinity are, nor what the statute prohibits, but, if “prohibitory” is construed to mean “prohibited,” then the charge does not specify what is prohibited. '

The use of the 'word “prohibitory” might well have been avoided. It none the less conveys the meaning of “prohibit,” or “prohibited.” 'The indictment also informs the defendant of the degrees of consanguinity within which marriage or concubinage is prohibited, by charging that he, the uncle, lived in concubinage with his nieee. The statute fixes the limit in degrees which includes the uncle and the niece. The information sets forth the prohibited concubinage.

Thete was a plea of prescription filed. The information contains the usual averment that the offense was not made known to a competent officer to direct the investigation.

It does not appear, that any objection was raised to the court’s notion on this plea, or that the prosecution did not introduce the required evidence to negative the plea.

In the absence of a bill of exceptions, this court must assume that the plea of prescription was not sustained by the facts shown.

In his motion for a new trial, the accused alleged that he had newly discovered evidence to offer in his defense. The trial judge, for reasons stated and made part of the bill of exceptions, did not think, that the evidence was newly discovered, nor did he think that the defendant had used proper diligence. We accept as true his uncontradicted statement. State vs. Williams, 50th Ann.

We have given this case our most careful attention, and have found no grounds to reverse the verdict. We must say that the minimum penalty of the statute falls heavily on the defendant, who is a colored man, and his half-niece, a colored woman, but to the Board of Pardons •consideration may be addressed that have no place here.

For reasons assigned, it is ordered, adjudged and decreed, that the verdict and sentence in this case be and they are affirmed.

Niohotls, C. J., absent.


author: Miller, J.

text:
    No. 12,913.
    The State of Louisiana vs. Frank M. Robertson.
    Syllabus.
    When the accuseil is at large, having escaped from custody, his appeal from the sentence will not entitle Rim to a Rearing on the appeal, and it will be dismissed.
    ON APPEAL from the Fourth Judicial District Court for the Parish of Jackson. Machen, J.

      M. J. Cunningham, Attorney General, and A. B. Hundley, District Attorney, for Plaintiff and Appellee.

      Price & Edwards for Defendant and Appellant.
    Submitted on brief November 26, 1898.
    Opinion handed down January 23, 1899.
   The opinion of the court was delivered by

Miller, J.

The accused, convicted of mansluaghter, takes this appeal from the sentence.

We have no brief on behalf of the accused, explained, we presume, by the motion to dismiss, based on the escape from jail of the accused pending the appeal, shown by the affidavit of the sheriff accompanying the motion. The accused still at large, cannot be heard in support of his appeal.

It is therefore ordered, adjudged and decreed that the appeal herein be dismissed.