author: Fenner, J. Bermudez, C. J.

text:
    No. 8854.
    The State of Louisiana vs. Alfred H. Porter and Henry Stowe.
    The refusal of the Judge to deliver his charge to the jury in writing upon the seasonable request of the party, as required by statute, is error, and justifies the avoidance of the sentence and judgment.
    APPEAL from the Criminal District Court for the Parish of Orleans. Luzenberg, J. ,

      J. 0. Egan, Attorney General, for the State, Appellee.
    TF. L. Evans for Defendant and Appellant,
   The opinion of the Court was delivered by

Fenner, J.

The defendant, Porter, tried for murder and convicted of manslaughter, asks in this appeal reversal of the judgment and sentence, on the ground that, although he made seasonable request to the Judge to deliver his charge to the jury in writing, he refused to do so, but delivered the same orally.

The statute is imperative that, “in all cases appealable to the Supreme Court, it shall be the duty of the Judge to deliver his charge, to the jury in writing, if the counsel of either party require the same.”

It appears from the bill of exceptions that the counsel for defendant did formally make this requirement and that the Judge refused the same, assigning the following reasons :

The jury in this ease was called at two o’clock p. m., January 24th, and empanelled at eight minutes to four o’clock p. m., the same day. After the State had closed its case, and when one Joseph McEvoy, the eighth witness for the defense, was on the stand, at nine and one-half o’clock p. si., counsel for the defense asked the court to give a written charge to the jury, which request was denied, as made at an unreasonable time.

“ There were thirteen witnesses examined for the defense, but three of them being examined as to facts, all the rest being for character. The defense closed at two minutes past ten o’clock p. si., and the case was submitted on the charge of the court without argument.” R. p. 12.

The statute does not fix auy time at which the request must be made. It confers an unqualified right upon the parties, which may be exercised at any time before the period for giving the charge arrives. The court may, doubtless, protect itself against inconvenience by requiring counsel to exercise their election on this subject at any proper stage of the proceedings; but we are not informed that it had adopted any rule on this subject, or had made any such special requirement of counsel. How was counsel toknow what was the reasonable and proper time to make his request, in absence of any provision in the statute or information from the court ?

It has been heretofore held by this Court, that the refusal of the Judge to give his charge in writing, when requested by counsel,' “ unless the counsel insisted on it,” was error, because the Judge had. no right to impose such condition. State vs. Swayse, 30 An. 1328.

In a later case, we ourselves said: “the Judge should not exhibit any unwillingness to comply with such request, or say or do anything tending to throw upon counsel any blame for the inconvenience to which the jury might be subjected.” State vs. Hopkins, 33 An. 34.

The point was moreover directly decided in State vs. Gilmore, 26 An. 599.

In other States, where the law requires the Judge, in capital cases, to deliver his instructions in writing, it has been held error not to do so, or to charge the jury orally without consent of parties, or even' verbally to modify the written charge. People vs. Beeler, 6 Cal. 246; People vs. Payne, 8 Cal. 341; 14 Cal. 437; 12 Id. 345; 26 Id. 78; Long vs. State, 11 Fla. 295; Payne vs. Com., 1 Metc. (Ky.) 370.

It is not for us to say whether defendant has been injured in this case by the deprivation of this right. The- law maker must have attached value to the right, or he would not have been at pains to pass the law conferring it. The advantages of exactness in the statement of the law, and of the opportunity given to counsel to scrutinize the same and to have it embodied in the record, are sufficiently obvious.'

At all events the right is clear, the duty of the Judge absolute, and the deniáí is error. ’

It is, therefore, ordered, adjudged and decreed that the judgment and sentence appealed from are avoided'and reversed and the verdict set aside, in so far as they affect the appellant, Alfred H. Porter, and' that this case be remanded to the lower court', to be proceeded with according to law.

Concurring Opinion.

Bermudez, C. J.

The Judge has no power to add to or detract from the law, so as to deprive the accused of the right of demanding a written charge, at any time before he has begun to charge the jury.

Th e privilege of requiring a written charge is unqualified and absolute. We cannot, therefore, be abridged by any rule or dictum of the court.

As the law does not authorize the Judge to make any rule on this subject, we cannot delegate to him any power in that respect.

The Judge was bound to give the written charge asked. He has erred in refusing to do so. ■

This is enough to set aside the verdict, annul the sentence and remand the case.

For that reason I concur in the decree.

Mr. Justice Todd concurs in this opinion.


source: Caselaw Access Project

author: Manning, J.

license: Public Domain

text:
    No. 8792.
    The State of Louisiana ex rel. E. Gras et al. vs. Allen Jumel, Auditor.
    A petition must contain allegations sufficient, if true, to entitle the party to the relief prayed.
    Appiopriations of money cannot now he made by the legislature for a longer time than two years. The appropriation of 1876 Sbv pensions continued two years after the Constitution of 1879 took effect, hut not longer.
    APPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Sherburne, J.

      1. S. Hymns and S. P. Greves for Plaintiffs and Appellants.

      J. G. Hgmi, Attorney General, for Defendant and Appellee.
   The opinion of the Court was delivered by

Manning, J.

The relators seek to compel the Auditor of Public Accounts by mandamus to issue warrants to them as pensioners under the Act of 1876. (Sess. Acts, p. 103.) The respondent inter alios avers there was no appropriation in 1882 for those pensioners, and no unexpended balance for 1880 and 1881. The petitioners admit they have each received warrants of $28.65 for each of the years 1880 and 1881, but allege that sum is insufficient, without stating how or why it is'so, nor do they allege an unequal or unjust distribution, or that there is an unexpended balance of the appropriations for those years. No grievance is shewn—no right to warrants for larger sums than those received, so that were all the allegations taken as true, no relief could be granted under them.

As to 1882 it is insisted that the appropriation made in 1876 is continuing, and applies to all future years. The present Constitution prohibits appropriations for a longer time than two years. Art. 43.

This Court has decided that that Act continues in force except so far as it is inconsistent with the Constitution of 1879, and that it was inconsistent in so far as it extends the annual appropriation for these pensions beyond two years from the time that Constitution took effect. State ex rel. St. Cyr vs. Jumel, unreported.

The time during which this appropriation continued therefore expired with the year 1881.

It is further urged that the judgment is null because it does not cite any law, nor adduce any reason for it. The judgment recites the usual formula, “ the law and evidence being in favor of,” etc., which has long since been held to be sufficient.

Judgment affirmed.

Rehearing refused.


author: Bermudez, C. J.

text:
    No. 8858.
    The State of Louisiana ex rel. John Osborn vs. W. T. Houston, Judge of the Civil District Court for the Parish of Orleans.
    A prohibition is not a writ of right and issues only in tbe sound discretion of tbe court.
    It does not lie to prevent a Diatriot Judge from entertaining jurisdiction over a suit for an injunction to arrest the exeoution of a jl.fa., issued by a oourt of a different territorial ju risdiotion against a party to the suit, domiciled within the jurisdiction of the first Judge, where, under tbe foroe of oiroumstanoes, it beoomoa necessary to ward off an immodiata injury, otherwise unavoidable.
    The rule that eaob court controls the exeoution of its judgment is subjeot to'suoh an exception in favor of both tbe party oast in the suit and of third opponents.
    Application for a Prohibition.
    jST. G. Myers for the Relator.

      P. D. Chrétien for the Respondent.
   The opinion of the Coui't was delivered by

Bermudez, C. J.

This is an application for a Prohibition. The relator charges that the respondent Judge has illegally issued an injunction arresting the execution of a ft. fa. issued in his favor, as defendant, against the plaintiff in the case, by the District Court of the Parish of Rapides, and directed to the sheriff of the Parish of Orleans; that in doing so, said Judge has exceeded the bouuds of his jurisdiction ; that he has excepted to such proceedings, but that bis exception was overruled ; that the District Judge, although incompetent, is about to try the case on its merits, and that the prayer is, that the injunction is perpetuated.

The District Judge returns that he has jurisdiction, and refers to several authorities in justification of his conduct.

As a matter of public policy, with a view to a proper balance and harmonious operation of the judicial system, and to avoid conflicts of jurisdiction, the law has, from the beginning, wisely provided that it appertains to the court which has rendered the judgment to take cognizance of tlie proper manner in which its execution is to be determined. C. P. 62.9. Hence, it has been held, that as every court has exclusive control over its process, the execution of a judgment can be enjoined by no other court than that from which the writ issued.

This is so truly so, that when execution issues and is levied on property actually belonging'or supposed to belong to tbe defendant in tbe writ, third parties are directed to present their claim before the same court, either for a preference out of the proceeds of the thing seized, when sold, or to arrest the sale when they assert title of ownership to it. C. P. 397 j H. D. 1180; L. D. 551.

Exceptions ex necessitate have nevertheless been judicially recognized to exist to the rule where, for instance, by the force of circumstances, it becomes necessary to ward off an immediate injury, otherwise unavoidable.

This privilege has been declared as extended, not only to third persons, but also to parties to the suit in which the writ had issued to the sheriff of a court having a territorial jurisdiction different from that of the court which rendered the judgment. 7 N. S. 658; 4 N. S. 388; 2 An. 323, 492; 5 An. 648; 4 An. 84; 13 An. 253; 18 An. 339; 27 An. 606; 28 An. 598.

The writ of prohibition is not a writ of right. It issues, in the discretion of the court exercising a supervisory control, only in those cases in which there exists a palpable usurpation of jurisdiction.

If the facts alleged in the petition for an injunction in the case in question be true, there can be no doubt that the plaintiff, defendant in the writ, is entitled to claim and obtain, at the hands of the court having jurisdiction of his person and of his property, the protection which he demands.

His complaint therein is, that the fi. fa. has issued against him for costs which he does not owe, and that, unless the local sheriff having the writ for execution be enjoined from proceeding thereunder, his property will be seized, to his injury and damage.

It is clear that, under such circumstances, it would be requiring from the defendant in writ an impossibility, and to expose him to, possibly, great injury, to demand of him to apply to the court of Rapides Parish, which rendered the judgment, for an injunction to arrest the threatened levy of the fi.fa. on his property. The apprehended injury, otherwise unavoidable, could not have been warded off immediately, unless by application to the court of the party’s domicil.

It is next urged that the District Court was without jurisdiction, because the judgment, the execution of which is enjoined, is for less than one hundred dollars.

The District Court of Rapides Parish would have had jurisdiction to enjoin its judgment. The District Court of the Parish of Orleans is ex necessitate substituted to it. The plaintiff in injunction could not have applied to a City Court for relief.

The application is refused with costs.

Rehearing refused.


author: Manning, J. Bermudez, C. J.

text:
    No. 8760.
    Leon Lavedan vs. F. F. Trinchard.
    The settled praotioe is to consider the surety to the injunction bond a party to the appeal without mention of.liira in the motion for appeal if his principal be appellant, and without citing him if the appeal is by petition, his principal being appellee.
    Where the government, in the Act of Congress confirming a title to land, makes special reservation of the rights of all parties then claiming an interest therein, such parties are remitted to the State courts for the litigation of (heir claims.
    The holder of a patent with such reservation will be considered as plaintiff in a petitory action against adverse claimants, whatever be the form in which he makes the attack, and must therefore recover on the strength of his own title.
    A proceeding by seizure and sale of land in the possession of third parties for more than thirty years, cannot have the effect of lowing them to assume the attitude of plaintiffs in a petitory action. Their position is that of defendants in such a suit. "Cintila better title be shown and reooguized contradictorily with them, they oan securely rely on their possession.
    APPEAL from the Twenty-sixth District Court, Parish of St. Charles. Halm, J.

      F. T. Florence and H. G. Millet' for Plaintiff and Defendant, Appellees.

      Jas. _D. Augustin for Opponents and Appellees.
   The opinion of the Court was delivered by

Manning, J.

The real object of this suit is to interpose judicial proceedings to bolster up a claim upon a small tract of land about twenty-four miles above this city. It is thinly disguised under the device of foreclosing a mortgage between parties, who have gone through certain notarial forms as a basis for their pretensions.

The tract has one hundred and twenty 26-100 acres, and is and has been long in the possession of the Gassens, third opponents. Emile St. Amand obtained a patent for it from the United States June 1, 1878, and executed a notarial sale of it to F. F. Trinchard a month afterwards for $3,000, of which one-third was said to have been cash, and two notes were executed for the residue. When the second note matured, the plaintiff Lavedan produced them, claimed to he owner of them, and obtained an order of seizure and sale of the land.

None of these parties had ever been in possession of the land. Jean Baptiste Gassen and two others found the property, of which they and their authors had been in possession more than thirty years, advertised for sale under process issuing in a suit of which they knew nothing. They injoined the sale.

The land is a part of the section bought by Baptiste St. Amand from the United States in November, 1830, from whom the opponents derive title through mesne conveyances. They and their authors occupied it, their boundary lines including the lots or parts seized by the plaintiff. These lots are a part also of the Paul Toup claim, which came before this Court in Lanfear vs. Harper, 15 Ann. 548, and was declared by. the U. S. Supreme Court to have been only conditionally confirmed to Toup’s children, special reservation being made in the Act of Congress of August 18, 1856, of the right of any person, then settled upon the land, to maintain air action therefor. The proviso in the Act is that the confirmation lt shall only be construed as a relinquishment of title on the part of the United States, and shall not affect the lights of any third persons claiming title either under adverse title or as preern ptors.” Lanfear vs. Humley, 4 Wall. 204.

There can therefore be no question of prescription against the government in the case. The government as long ago as 1856 abandoned all claim to the-land, and would not unconditionally confirm Toup’s claim, the origin of which was in 1796, but left the question of location or boundary to be adjusted by the State courts. The confirmation was founded upon a survey of one Haucke, and the State court decided Xiaueke’s location of the claim to be wrongful.

The plaintiff endeavors to put the opponents in the attitude of plaintiffs in a petitory action, but their position is that of defendants quoad the demand for the land, and they may rely securely oh their continuous and undisputed possession until a better title be shewn. That lias not. been done by the plaintiff or defendant, who appear to be of one mind in this suit. The United States relinquished all title to the land twenty-two years before Emile St. Amand obtained his patent, j and he therefore acquired nothing, sold nothing to the defendant, and I could transfer no rights of mortgage to the plaintiff.

There is a motion to dismiss, on the ground that the surety to the injunction bond has not appealed, which is refused. It is identical with the like motion iu Tilton vs. Vignes, 33 Ann. 240. The settled practice is to consider the surety in injunction as a party without citing liim, or mention of him in motion of appeal. Matta vs. Gayle, 10 Ann. 347.

It is therefore ordered and decreed that the judgment of the lower court is avoided and reversed, and that there be now judgment iu favor of J. B. Gassen and the other opponents, maintaining and perpetuating their injunction, and that they also have and recover of the plaintiff the costs of their opposition and injunction iu the lower court, and the costs of this appeal.

On Application por a Rehearing.

Bermudez, C. J.

The cause of alarm on which this application seems to rest is, that in the judgment rendered we have passed on the titles involved.

We have done no such thing. We have merely held, that tile position of the opponents is that of defendants in a petitory action, and that they can securely rely on their possession until a better title be shown. We passed simply on a question of form.

This leaves the door open for those concerned to institute proper proceedings to revendiente the property and thus have their title declared superior, if such, to that which opponents may assert to it.

Application refused.


text:
    No. 8785.
    M. Villey vs. L. Jarreau et als.
    Where a judicial mortgage creditor seeks to annul the title of ownership alleged by parties in possession of the real estate sought to be subjected, and the latter show a better and paramount title, the plaintiff in the action must fail and the defendants must be quieted.
    Parties who are in possession under one who holds a patent from the State to public lands acquired from the general government, exhibit a title superior to that of others who are not in possession and who oppose merely a just and translative title, although anterior possession, however long, be shown. Public lands, as against the government, cannot be acquired by prescription.
    Where settlers may have had a right of preemption and have failed to comply with legal requirements to secure the same, previous to adjudication by the government., such right must be considered as lost. They know they are tenants by sufferance and occupy at their own risk.
    APPEAL from the Fifteenth District Court, Parish of Pointe Coupee. Foist, J.
    O. 0. Provosty for Plaintiff and Appellant.

      Haralson & Claiborne and Heioes & Parlange for Defendants and Appellees.
   The opinion of the Court was delivered by

Bermudez, C. J.


author: Todd, J.

text:
    No. 8825.
    The State of Louisiana vs. Jake Sheard and James Smith.
    Where, in a criminal case, no objection is made by the accused or his counsel to the charge delivered in wiiting when given, and no bill of exceptions taken thereto, and there is no proper assignment of errors, and complaint is for the first time made in tjhis.Court.with, respect thereto in the brief of counsel, the matter will not be reviewed by this Court, nor the sentence disturbed.
    APPEAL from the Criminal District Court for the Parish of Orleans. Roman, J.

      J. G. Egan, Attorney General, for the State, Appellee: .
    1. An assignment of errors in criminal, as in civil cases, must be written and filed within ten days after the filing of the record. Art. 862, C. P.: 13 An. 863. ,
    2. “In like manner it is obvious, and so it is often stated to the jury, that a good character can have little or no practical weight with them in a clear case, where the evidence against the prisoner is direct and otherwise satisfactory.11 Bishop on Crira. Proc., Sec. 1063; Vol. 1 Crim. Law Mag., p. 800; Vol. % p. 261; Vol 3, pp. 256, 421 and 757.

      W. L. Evans for Defendant and Appellant:
    Evidence of good character, offered by the defendant, should be considered by the jury, and the jury alone, the same as any other fact. 3 Greenl. Ev., Sec. 25; Fields vs. The State, 47 Ala. 608; Waterman’s Cr. Digest, p. 150.
   The opinion of the Court was delivered by

Todd, J.

The defendant Jake Sheard, charged with murder, was tried arid convicted of manslaughter, and from a sentence of ten years’ imprisonment at hard labor in the penitentiary, has appealed.

Without filing any written assignment of errors, his counsel suggests in his brief one single error, upon which he relies for a reversal. of the sentence.

It is this:

That the Judge charged the jury, that in a case of this kind evidence of character for peace and quiet is always admissible on behalf of the accused. But lawful as it is to introduce such evidence, the jury should see to it that it does not annul and destroy any direet evidence offered by the State in support of the charge brought against the accused.”

This charge, when given, was not objected to in the court below; no bilL of exceptions was taken to it, and from aught that appears in the record there is nothing to show that it was not fully acquiesced in by the accused when delivered, and the first, complaint heard of it is in this Court, in the counsel’s argument.

In the case of State vs. Beaird, 34 An. 106, this Court said:

Although in writiug, the Judge’s charge was not excepted to. We held in State vs. Ricks that where the charge was in writing and in the record, we would notice errors, under proper assignment thereof, although not presented by bill of exceptions. While not now overruling this opinion, which, however, is contrary to prior authority, (10 An. 453) and, therefore, to be strictly construed, we deem it proper to say that it is in every way preferable that charges should be excepted to when given, in order that the Judge may have an opportunity of explaining or correcting his charge at the time; otherwise the defendant would be at liberty to take his chances of acquittal on the charge delivered, and, if convicted, to urge his objection in subsequent proceedings. Only in cases of gross and unambiguous error will we sustain objections to the charge not made and presented by bill of exceptions at time of delivery.” See also, State vs. Curtis, not yet reported.

We find no proper assignment of errors in this case and, besides, it does not present in other respects the conditions that, under the rule laid down in the decision above quoted, would authorize us to review the ruling or alleged error complained of. To the rule there announced and now reasserted, we shall inflexibly adhere.

Judgment affirmed.


author: Pocufl, J.

text:
    No. 8838.
    The State of Louisiana ex rel. J. C. Seale vs. The Police Jury of Madison.
    The obligation of a parish to pay the salary, or other emoluments of office, of an officer whose compensation is fixed by law, does not arise from a contract, but is created by operation of law. Hence, the constitutional limitation, under which a mandamus to levy a special tax in satisfaction of a judgment enforcing such an obligation must be refused, does not impair the obligation of a contract, within the intent and meaning of the federal Constitution.
    APPEAL from the Eighth District Court, Parish of Madison. Delong, J.

      H. P. Wells and J. B. Stone for the Relator and Appellant.

      Spencer & Ducas for Respondents and Appellees.
   The opinion of the Court was delivered by

Pocufl, J.


text:
    No. 8863.
    The City of New Orleans vs. Timothy Bayley.
    A “ mechanic who employs assistance ” is exempt ñoñi a license tax upon his trade, under the clause of the Constitution excepting; those engaged in mechanical pursuits from the enumeiation of occupations liable to such tax»
    AppEAL from the First City Court of New Orleans. Skinner, J.
    J. IF. Gurley Ji\ and it. (7. Morgan for Plaintiff and Appellee.

      JB. B. Forman for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

The defendant appeals from a judgment condemning him to pay a license for the year 1882 upon his occupation of “ mechanic who employs assistance,” imposed by the City under authorization of an Act of 1880. Acts, p. 143.

The Constitution permits the General Assembly to levy a license tax, and prescribes that all persons * * pursuing any trade * * may be rendered liable to such tax except * * those engaged in mechanical pursuits, and other specified occupations.

The defendant is a plasterer, works at his trade with his own hands, and when executing a larger contract than he can conveniently do himself, employs other plasterers to assist him.

Manifestly he is engaged in a mechanical pursuit. The employment of assistance in his occupation does not alter the nature of his occupation. The Constitution exempted those engaged in mechanical pursuits from the payment of license upon their trades. It was in force when the Act of the General Assembly, under which the City passed her ordinance, was enacted. The ordinance, following the language of the Act, imposed a license tax upon every individual carrying on. the business of * * mechanic who employs assistance.

The superior law had already prohibited that kind of business from being taxed, and therefore the legislature was without authority to impose a tax upon it. Much more was the City without authority. Therefore,

It is ordered and decreed that the judgment of the lower court is reversed, and that the defendant now have judgment against the plaintiff rejecting her demand, and for costs in both Courts.


text:
    No. 8636.
    Margaret A. Wade, Tutrix, vs. Chas. B. Murray, Executor. Intervention of A. Rochereau.
    Property acquired by an heir at a partition sale of bis ancestor’s succession, if paid for by bis heritable share thereof, is and remains an inheritance, and the mode of acquisition is not a sale in the ordinary or legal sense of that word.
    The resolutory condition which is implied in commutative contracts, and which inheres specially to a sale, does not attach to such modo of acquiring property.
    APPEAL from the Civil District Court for the Parish of Orleans. Bight or, J. A

      T. Gilmore & Sons for Plaiutiff and Appellant.

      0. B. Sehmidt for Intervenor and Appellee:
    Action hy the tutrix of two minor heirs of Lucretia Wade for the resolution of the adjudication made to one of their co heirs, H. F. Wade, Jr., at the licitation effected under the partition proceedings had in the succession of the said Lucretia; the plaintiff claiming that the said minors’ portion of the price of adj udication had not in fact been paid them by the said H. F. Wade, their father, now deceased, and that, therefore, they are entitled to a resolution of the adjudication as to the share they inherited in the said property.
    1. This action cannot be maintained. The resolutory condition is not implied in partitions, whether they be made in kind or by licitation, either between co-heirs or co-proprietors.
    Where one of the co-heirs becomes the adjudicatee at the licitation made for the partition of the succession property, he is not considered as having acquired the specific property adjudicated to him, by purchase from his co-heirs, since, as is well said by the French commentators, “lepartagen’est pas attributif, mais déclaratif de propriété.” The heir to whom the property has been adjudicated is deemed to have acquired it from the deceased by right of inheritance. Troxler vs. Colley, 33 An. 428, 429; Porter vs. Lepeyster, 18 La. 355.
    Licitations are not subject to the resolutory action for non-payment of the price of adjudication. Laurent, Yol. 10, No. 412; Yol. 24, No. 460; Merlin, Quest. Yo. Resolution, §6; Duvergier, Yol. 1, No. 145; Luranton, Yol. 16, Nos. 484, 485; Troplong, de la Yenfce, Yol. 1, No. 12; Yol. 2, No. 876 ; Rolland de Yillargues, Rép. Yo. Resolution, No. 18.
    2. The intervenor before accepting a mortgage on the property which he afterwards purchased, ascertained that both the cash and credit portions of the price at which the property had been adjudicated in the partition proceedings to H. F. Wade, Jr., bail been paid, as shown by the authentic acts evidencing such payment adduced by him. on the trial. With such evidence he was protected against the resolutory action, even if his vendor's title had been subject to the resolutory condition.
    3»- While both the father and mother of the minors were living, the minors were properly-represented in the partition by their father, since they could, at the time, have been represented by no tutor, and Art 221, (26'7) C. C., says:
    “The father is, during the marriage, administrator of the estate of his minor children.” This provision corresponds with Art. 389, O. N. interpreting which, Laurent says, (Yol. 17, No. 517) that the right of the father as legal administrator of his minor child’s property to receive what is due the latter, is undoubted and subject to no control. His right is the same as that of a tutor, although the law does not give the minor the same guaranties in such case as against a tutor. See also, 3 An. 610.
    4. Whether the father has, or has not forfeited the legal usufruct of his minor child’s estate during the marriage, he still retains its administration. Locré on Art. 389, C. N.; Ya* zeille, Yol. 2, No. 457; Zaehari©, § 99, note 12.

      5. If the father of the minor plaintiffs squandered the inheritance left them by their grand* mother, his unfaithful administration can legally afford them, under the circumstances of this case, no ground of action for the recovery of any part of the property derived from bim by the intervenor.
   The opinion of the Court was delivered by .

Manning, J.

The suit is for the resolution of a sale.

Lucretia Wade bequeathed her whole estate to her grandchildren, two of whom were children of her soji Henry, who was living. There were other forced heirs also, and the testamentary disposition was in consequence reduced, so that the two children of Henry became entitled to only 10-72 of the succession.

A partition was made under decree, and the property in question, an improved lot in this city, was bought by Henry at the sale for $22,500, one-third cash, and the residue on time. The notes were secured by mortgage as usual. It is alleged no money has ever been paid to or for these two minors by their father upon the purchase. He was the debtor, as purchaser of the property, and this portion of the price was due his children, and no one could receive it but liijnself. In due time all the notes, representing the credit instalments, were presented to the Recorder of Mortgages as paid, and the inscription of the mortgage was cancelled.

Albin Rochereau loaned Henry Wade a large sum of money taking a mortgage upon this property as security. The records shewed it was unincumbered. Wade afterwards went into bankruptcy, and at the sale of his estate, bis creditor Rochereau bought this property to save his debt, or as much of it as he could.

Then Wade died, and the defendant became his executor, and his widow as tutrix of the two children instituted this suit. Rochereau intervened to protect his title, and oppose the resolution of the sale.

It is conceded on both sides that the decision of Troxler vs. Colley, 33 Ann. 425, has totally changed or materially altered the legal attitude of tlie parties to this suit. This suit was tried before that decision was rendered. By it, the property acquired by an heir at a partition sale of the ancestor’s succession and paid for with his heritable share thereof, is declared to be his separate property, and the mode of acquiring it to be not a sale in the ordinary acceptation of that word, nor in its legal sense.

That fundamental principle being thus established, the property acquired by Henry Wade at the partition sale was not an acquisition by purchase and sale, but was an inheritance, and it necessarily follows that the resolutory condition which is implied in commutative contracts, and which inheres specially in a sale, did not attach to it. This suit is to enforce that condition. Its non-existence abates the suit.

The plaintiff’s counsel feel the force of this inevitable deduction, but urge that the action in resolution is the only means by which these children can receive their share of the property purchased by their father, as he died, insolvent.

It seems a hard case, outside of the Pentateuch, that the sins of the fathers shall be visited upon the children, but it would be yet harder if the man who had lent his money on the faith of the father, and on the condition of the public records produced by him, should suffer instead of them. It would be cause for gratulation if the inexorable application of a legal principle always met the demands of justice as fitly as it does here.

Judgment affirmed.


author: Bermudez, O. J.

text:
    No. 8708.
    The City of New Orleans vs. The New Orleans Sugar Shed Company.
    The City of New Orleans has no authority to exempt property from taxation or to agree to a commutation.
    The stipulation in a contraot that a bonus of a certain proportion of gross profits realized shall be paid to the City, provided the property yielding the revenue from which the same are derived shall be exempt from municipal taxation during the existence of the privilege granted, is in violation of the Constitution and must be considered as not made. The nullity of such stipulation renders void the agreement which depends upon it.
    The City cannot claim both. It can claim the taxes only and is entitled to the privilege allowed by law. Where the bonus has not been paid as taxes and has been appropriated to purposes other than those to which taxes must be devoted, the taxes cannot he considered as satisfied by the payment of the bonus. Taxes are not compensable. The party who has paid the bonus is entitled to recover as an ordinary creditor only.
    A PPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.
    J. Ward Gurley, Jr., Assistant City Attorney, for Plaintiff and Appellant:
    All exemptions from, and*commutations of taxes oh property not “actually used for church, school, or charitable pulposos,” are illegal, null and void. Art. 118, Constitution of 1868; 28 An. 498 and 756; 31 An. 447.
    The ten per cent, bonus stipulated in Ord.1528, N. S., to bo paid by the defendant Company to the City, is “ as a consideration for said privilege,” the franchise, and not ia lieu of taxation. The proviso, attempting to give an exemption, was and is an absolutely illegal addition. It formed no part of the consideration on either side, and can have no possible effect. Third subdivision of Sec. 2 of Ord. 1538, N. S.

      Blane & Butler for Defendant and Appellee:

      The State has power, notwithstanding the uniformity and equality olause in her fundamental law, to commute taxation; and power to oommute has been bestowed by the State of Louisiana upon the City of New Orleans. 3!) Wis. 116 ; 17 111. 291; 21 N. J, 557 f 31 Ala. OX ; 30 Ind. 146; 1 Gill. 302; 21 Wall. 456 ¡ 10 Wisoonsin, 243,263 ¡ 9 Wall. 55; 24 An. 86; 11 * An. 733.
   The opinion of the Court was delivered by

Bermudez, O. J.

The object of this suit is to recover from the defendant $2,700, as a tax on its merchandise, capital and money at interest, assessed at $60,000, and on other property consisting in sheds built on tile public spaces in the levee in the Second District of the City and known as the sugar landing, assessed at $120,000. \

Numerous defenses were interposed, most of which were abandoned, the principal and serious ones only being adhered to. They are : that under a contract with the City the defendant Company is exempt from taxation ; that if such be not the case, that half of the sheds belonging to the City, it is not liable to taxation and that the tax sued for can he enforced on the remaining half only which is the property of the Company.

. It is further urged in the alternative, that the defendant has paid to the City, under, the terms and conditions of the contract, in the shape of a bonus, for the consideration of said contract, the sum of $3,181.63, which should be applied to the claim now urged.

There was judgment in favor of the City for $2,700, with ten per cent, interest, and for defendant for $3,181.63, with five per cent, interest, the court refusing the quasi compensation set up.

■ The facts are, that the City of New Orleans in 1869 conceded to F, B. Fleitas, from whom the defendant Company holds, the exclusive use of said public places known as the sugar landing, for the term of twenty-five years, with the obligation of building sheds and with the right of collecting dues at those places on certain conditions.

The two important portions of the contract, which have an immediate hearing on this controversy, are Sections 3 aud 4, which read as follows i

Sec. 3. “The said Fleitas shall pay to the City of New Orleans, as a consideration for said privilege, during the term aforesaid, ten per centum of the gross amount of charges realized for shelter on each hogshead of sugar and molasses placed under said sheds ; the said ten per cent, to he paid quarterly, on statements rendered under oath to the Treasurer of the City of New Orleans; provided, that said sheds, aud the revenues or income derived therefrom, or from said privilege, shall not he subject to any municipal taxation whatever during the existence of said privilege.”

Sec. 4. “ In addition to the above- consideration, the said sheds, a® the expiration of said term of twenty-five years, are to be appraised at their then cash value, in the manner following: one appraiser to be appointed by the said Pleitas, or his representatives, successors or assigns, and tlie other by the City of New Orleans. The two thus selected shall call in a third disinterested person as umpire, and the appraisement thus made shall be conclusive and binding on all parties, and the City of New Orleans shall have the option to take said sheds at oue-lialf of said appraised value, or of extending the privilege herein granted, on the same terms as those herein specified, for the further period of fifteen years, except that at the expiration of said fifteen years said sheds are to revert to the City in full ownership, free of all costs.”

The consideration for the privilege of occupying and using said public places, which are a locus publicus, and of collecting the dues on the sugar and molasses there landed, was clearly, in the honest contemplation of the parties: 1st, that Pleitas would build the required sheds and keep them in good condition ; 2d, that he would pay to the City one-tenth of the gross receipts or dues realized for sheltering sugar and molasses under said sheds; 3d, that .at the end of the term of twenty-five years the City would have the option to take the sheds at one-half of their appraised value, or extend the privilege for- fifteen years, at the end of which the sheds would revert to the City in full ownership and free of costs; 4th, that said sheds and the revenues or income derived therefrom, or from the privilege, would not be subject to any municipal taxation whatever during the existence of said privilege.

I.

It takes no argument or authority to establish that the City bad no power to exempt the property of the defendant, or to commute the taxes upon it, as is claimed was done. 31 An. 447; 28 An. 756, 498.

II.

The second proposition cannot be sustained. From the very terms of the contract, it is apparent that the contingent undivided interest of the City in the sheds consists merely in the slim hope of a possibility of exercising an option as to part ownership, at the end of the twenty-five years, for which the privilege was conceded, and eventually of claiming such ownership in full at the expiration of the fifteen years’ extension, should there be any slied in existence at the termination of the first or second.

We have searched in vain the record to discover what was the insurance effected on the sheds by the defendant. Had the policies been introduced, it would no doubt have been to show such insurance for the joint account of the Company and of the City. We found none. In the absence of such significant fact, we must infer the reverse.

In the case of this Company vs. Harris, Tax Collector, 26 An. 378, which was an injunction to be relieved from a tax on their capital invested in these very sheds, the defense was not set up that they belonged one-half to the City, and the State recovered.

In the case of the City vs. Russ, 27 An. 413, the question arose as to the right of the plaintiff to recover taxes on buildings and improvements placed by a lessee on lots belonging to the Poydras Asylum under a contract, under which, at the expiration of the lease, the Asylum was to acquire the same at the value put by experts. It was there decided that there was no doubt of the existence of such right, and the City recovered.

This ruling was affirmed in Lee vs. City, 28 An. 426.

III.

It now remains to be considered whether the City can recover, besides the tax, the ten per cent, bonus, and whether, if she cannot, this bonus which was paid should or not be applied to the satisfaction of the tax recovered.

The City contends that the proviso contained in the section relative to the payment of the ten per cent, bonus was stipulated in violation of a law of public order; that it must be considered not written and, therefore, as having no existence.

There ean be no doubt that, as the City had no power to exempt from taxes or agree legally to a commutation, the stipulation of exoneration was in contravention of law, but it does not follow that, therefore, the City must recover the bonus. The understanding was that the bonus would be paid, provided no taxes were demanded. If the condition upon which the bonus was to have been paid be prohibited, then it is void, and its nullity is destructive of the contract based upon it.

The law distinctly says:

R. C. C. 2031. Every condition of a thing impossible, or contra bonos mores (repugnant to moral conduct, or prohibited by law) is null and renders void the agreement which depends upon it.

The City, therefore, cannot recover both the tax and the bonus. 28 An. 497.

But now, can the City, after receiving the bonus, be required to apply it to the payment of the tax for which recovery is presently had?

It is evident that, for motives of public policy, this cannot be allowed.

The City lias no right to exempt, no right to commute, no right to divert her revenues appropriated by law tor special purposes.

The law requires that revenues derived from the assessment of taxes shall be received as such and be appropriated in certain ways. Other revenues collected otherwise are differently applied. Public revenues are not compensable. 33 An. 21.

There is nothing to show that the bonus was paid as taxes, was received as such and applied to the uses to which the law requires that they be appropriated. It is probable, almost to certainty, that the bonus was applied to purposes to which taxes are not appropriated, and thus distributed and beyond reach.

Permitting and sanctioning such a course would be to legalize not only a disturbance of the functions of the municipal government, Imito justify a total disruption of the machinery by which they are set in motion and kept in proper order and balance. A furtherance of the ends of such government imperiously forbids any transgression of those salutary rules.

' We find no error in the judgment appealed from, which is affirmed with costs.

Rehearing refused.


author: Bermudez, C. J,

text:
    No. 6717.
    William B. Booth vs. Jean Pierre Buras.
    In an action for boundary it is the duty of the Judge to order a new survey, where previous surveys have been rejected and where it is not' possible otherwise to ascertain and establish the boundary. If it was not ordered, the suit could proceed no further.
    In making an appointment for that purpose, instructions should be given by the Judge, so as to direct the surveyor in his researches, finding and return.
    APPEAL from the Second Judicial District Court, Parish of Plaque-mines. Pardee, J.'

      W> 8. Benedict and J, P. Bor nor for Plaintiff and Appellant.

      E. B. MeOaleb for Defendant and Appellee.
   The opinion of the Court was delivered by

Bermudez, C. J,


author: Pochk, J.

text:
    No. 7643.
    William E. Sewell vs. John H. Scott.
    It mattters not under what form, whether by petition, exception, rule or intervention, the question be presented, whenever the same question recurs between the same parties, the plea of res judicata estops. Hence, a judgment maintaining an exception of no cause of action, urging that plaintiff prays for relief, which cauuot be granted according to law, will support the exception of res judicata to a petition disclosing thesame cause of action between the si.me paities and for the same relief.
    APPEAL from the Sixth District Court for the Parish of Orleans. Rigldor, J.

      Breaux & Ball for Plaintiff and Appellant:
    Any purely arbitrary or fanciful name may be adopted as a trade-mark 5 it must not be a woidin common use. “Septoline” is, therefore, a proper and legal trade-mark. Inauy ranee Oil Tank Co. vs. Scott, 33 An. 951; Cooley on Torts, p. 362; Brown, Trade-Marks, Secs. 236, 274; Manufacturing Co. vs. Trainer, 101 IT. S. 53.
    The trade-mark protects the merchant or seller of an article. 6 Otto, 245 5 24 An. 297; Brown on Trade-Marks, Secs. 38-62.
    "Where there is no intention to deceive, and no motive for fraud, an injunction will issue to protect rights under a trade-mark. High on Injunctions, Sec. 674; Coddington’s Digest Trade-Mark Cases, Secs. 548, 561, 565, 570 ¡ Am. Trade-Mark Cases, pp. 282, 559.
    Chas. 8. Rice for Defeudant and Appellee:
    The exception that petition shows no cause of action, is equivalent to the general demurrer in chancery, and the judgment maintaining such exception, or demurrer, and dismissing the suit, is res adjudicata between the parties as to all matters contained in the petition, or bill, as the case may be. C. C. 2286, 2287; 1 An. 47, 48; 19 La. 328; 12 An. 197 ; 14 La. 59; 11 An. 287, 288.
    It being shown that the allegations in the petition relative to the particular class of goods to which, it is claimed, that the so-called trade-mark in question is applied, are false ; and it being also shown that said so-called trade-mark is applied to goods of a class, in all matters respecting the trade-mark, different from and inferior to those described in the petition; and that the object and effect thereof is to deceive the public, and to sell, at an. enhanced price, such inferior goods, under the mistaken belief that they are goods possessed of the reputed qualities of the goods in petition described, deprives such pretended trade-mark of the right to protection. (.Revised Stat. 17. S., Sec. 4937; Brown on TradeMarks, pp. 194, 216.)
    The plaintiff must come into court with clean hands. False representations to the public as, to tbe composition of the goods, which he sells under cover of his trade-mark, deprives such trade-mark of the right to protection. Am. Trade-Mark Cases, pp. 640, 644, 648.
   The opinion of the Court was delivered by

Pochk, J.

Plaintiff complains that defendant is illegally using his trade-mark, as a dealer in “ Septoline ” illuminating oil, and he brings this suit for an injunction and for damages in the sum of five thousand dollars. This appeal is taken by him from a judgment in favor of defendant.

The first defense urged below was the plea of res adjudicata, predicated on a judgment rendered by the Fifth District Court of the Parish of Orleans, in a suit between the same parties and for the same cause of action, maintaining a peremptory exception of no cause of action. The plea of res judicata was overruled by the lower court, but it was specially reserved by defendant in his answer to the merits, and is pressed on appeal.

We are of opinion that the District Judge erred in overruling that exception.

, The cause of action disclosed in the previous suit and the relief therein sought are identically the same and the parties the same as those presented in the present case. The peremptory exception pleaded in the first suit, :urged that plaintiff was not entitled to protection of a trade-mark indicating the quality of oil which was indicated by said trade-mark, and that plaintiff was not entitled to protection, under the certificate of registry of his trade-mark, “for the sale of articles, the sale of which was forbidden by law.”

The judgment which maintained the exception and dismissed plaintiff’s suit, clearly decided that his action had no foundation in law, and that under the allegations of his petition no legal judgment could be rendered in his favor.

We understand our jurisprudence to have settled the rule as follows : “ It matters not under what form, whether by petition, exception, rule or intervention, the question be presented, whenever the same question recurs between the same parties, even under a different form of procedure, the exception of res judicata estops.” Plicque vs. Perret, 19 La. 318; Trescote vs. Lewis, 12 An. 197; City Bank vs. Walden, 1 An. 47; Consolidated Association vs. Mason, 23 An. 619.

Under the effect of the final judgment rendered in the previous suit, it is concluded against plaintiff that he cannot obtain protection of his trade-mark, as disclosed by his petition, and that he is selling articles, the sale of which is forbidden by law.

It would be difficult to conceive of a more complete bar to a petition disclosing the same cause of action and praying for the same relief.

The argument of plaintiff’s counsel, that the pleadings in this case present additional issues, is answered by the statement that these additional issues are presented in defendant’s answer to the merits, and that under the plea of res judicata our concern is with the issue presented by his petition, before issue was joined on the merits.

For the foregoing reasons, we think that the judgment appealed from should not be disturbed.

Judgment affirmed at plaintiff’s costs in both Courts.


text:
    No. 8756.
    Matilda Vascocu, Administratrix, vs. George Woodward, Co-Administrator.
    When two suits between the same parties are consolidated, they henceforward form but one, and when thus tried and decided aud judgment is rendered, the party cast must appeal from that judgment if he wishes relief.
    If in such case tho Judge signs another judgment, adapted to one only of these suits, and none is signed in the other but only a bill taken to his refusal to sign it, the appeal taken from the second judgment will not be dismissed, but that judgment will be annulled.
    APPEAL from the Tenth District Court, Parish of Red River. Logan, J.

      J. H. Pierson for Plaintiff and Appellant:
    A sale by an administrator tx contractu is void. 26 An. 660; 7 N. S. 113; 2 La. 328.
    Sales of succession property under administration must be preceded by proper appraisement, order and public advertisement. 2 La. 328; 13 An. 548; 20 An. 233; C. C. Arts. 1051, . 1057 to 1059, 1167.
    A sale of minor’s property by tutor, in a private agreement, is absolutely void. 4 La. 269.,
    Action of rescission begins on the actual coming of age of minor, and is only prescribed in ten years. C. C. 2221.
    Whenever an administration is begun, as when there are minors who can only accept with benefit of inventory o,r majors do accept in like manner, or there are debts, it must he fully closed and settled, and no major heir or tutor for minor can stop the administration or affect it; and that a tutor for a minor is without power to ratify an illegal alienation made by the administrator, and can do no act to affect the minor’s interest in the residuum, which begins on a final liquidation and settlement. C. C. 1058; 7 Boh. 24; 10 B. 457; 4 An. 223 ; 5 An. 304; 2 Hen. Dig. p. 1462, Ho. 10, and authorities; C. C. Arts. 946 ; 1033, 1073; 27 An. 352; 29 An. 502; Blake vs. Kearny, 30 An. 389.
    A decree setting aside a null agreement enures to the benefit of all interested.
    A necessity must exist for a sale of succession property by an administrator, and he is not authorized to provoke such sale to effect a partition among heirs. 22 An. 309 ; 20 An. 355.
    An unfaithful administrator should be removed. 28 An. 784.

      L. B. Watkins, J. F. Pierson and TY. H. Jack for Defendant and Appellee.
   The opinion of the Court was delivered by

Manning, J.

The plaintiff instituted two spits against the defendant, one to recover damages for an alleged illegal sale of the property of the succession, of which both were administrators, for the nullity of that sale, and the destitution of the defendant of his office, in which suit the property sold was sequestered—the other to prevent the sale of the property of the succession which was then advertised, alleging the previous suit for destitution, etc., and injoining that sale. These suits were numbered 418 and 483 respectively on the docket of the lower court. They were consolidated, tried, and judgment rendered therein. No appeal has been taken from that judgment.

Two other judgments were drafted by the counsel for the party cast, and presented to tlie Judge for signature, one for each case. He signed the judgment adapted to No. 483, and granted an appeal from it, and the bond was executed. The defendant excepted to this action of the court in signing that judgment on the ground that a judgment had already been rendered and signed, and the court could do nothing more than grant an appeal from it.

But he refused to sign the other paper, prepared for suit No. 418, having come to the conclusion that his power was exhausted, and to this the plaintiff excepted, and incorporated the form of the judgment he had drafted in his bill.

The defendant moves to dismiss the appeal.

It is obvious the judgment in the consolidated cases is not before us for review. No appeal was taken from it—none was asked.

It is equally obvious there is no appeal in the suit No. 418. No judgment was rendered in that suit, separate from the consolidated suits. None was signed, (and under our system judgments in civil suits must be signed) and no proceedings were taken to compel the Judge to sign it, if his refusal was wrongful. As to that case, there is nothing before us but an exception to the Judge’s refusal, and if we should consider it well taken, we cannot order him to sign the judgment in this proceeding, and even if we should order him to sign it, that would have to be done in the future, and we cannot consider it done nuncpro tunc.

There is then no appeal before us but that taken from the judgment signed in and for suit No. 483, and the motion to dismiss cannot be granted. To dismiss the appeal would leave that judgment intact, and as apparently existing.

On the Hearing.

The consolidation of the two suits was proper and necessary. Thenceforth they constituted one case, were heard together, decided, and are in one transcript. One judgment was rendered, and the appeal should have been taken from it. There was no other judgment rendered—-the minutes mention no other—and the Judge should not have signed the paper purporting to be another judgment. It is a nullity and must be so declared. Therefore,

It is ordered and decreed that the judgment, appealed from as having been rendered in suit No. 483 between these parties, is annulled and set aside, the plaintiff and appellant to pay the costs of appeal.

Rehearing refused.


author: Eenner, J.

text:
    No. 8680.
    Alfred Rousseau, Executor, vs. The City of New Orleans.
    It having been held by the Supreme Court of the United States and by this Court, that Act No. 5 of 1870, in so far as it took away the judicial power to enforce the satisfaction of judgments by the writ of mandamus compelling the City of Now Orleans to levy taxes, within lawful limitations for that purpose, was unconstitutional as against prior contract creditors, that law stands as if it contained no such provision. The substantial and chief remedy existing at the date of the contract being thus left intact, that portion of the law which prohibits writs of fi. fa. against the City is a mere modification of the remedy within the legislative discretion and not of sufficient gravity to impair the obligations of the contiaet.
    APPEAL from the Civil District Court for the Parish of Orleans. Lasarus, J.

      Alfred Grima for Plaintiff and Appellant:
    The provisions of Act No. 5 of the Extra Session of the legislature of 1870, restricting the issue of the writ of fieri facias against the City of New Orleans to enforce the payment of any judgment for money against it, cannot be constitutionally extended to the case of a contract judgment, or a judgment enforcing an obligation contracted by the City previous to the passage of the said Act. Cooley’s Const. Lini. 289, 290; 103 U. S. 358; 96 U. S. 595; 13 Wall. 653; 32 An. 409, 709, 726, 886.
    When a vacant lot is formed by the intersection of three streets laid out by the City of New Orleans, and is part of a larger tract formed by alluvion, and the said lot is not dedicated to any public use, and is of no utility to commerce, and not adapted to any public purpose, the same is liable-to be seized at the suit of creditors of the City, on a judgment enforcing an obligation of the City contracted previous to the passage of Act No. 5 of the legislature of 1870, (Extra Session). 2 Dillon’s Munic. Corp., §445; 6Martin’s, 21C; 5La.l32,200, '■ 201; S Rob. 211; 7 An. 270; 23 An. 61; 102 U. S. Repts. 518, 530.

      O.B. Buck, City Attorney, for Defendant and Appellee,
   The opinion of the Court was delivered by

Eenner, J.

The plaintiff in this case, under a judgment against the City of New Orleans, caused a writ of fieri facias to issue, and seized thereunder a certain vacant lot belonging to the City.

The City applied for and obtained an injunction resting the application on two grounds:

1. That execution in the manner attempted, by means of the writ of fi. fa. against the City of New Orleans, is prohibited by Act No. 5 of the Extra Session of 1870.

2. That the ground seized is loeuspiiblieus and not liable to seizure.

The plaintiff claims that the provisions of Act No. 5 of 1870, prohibiting the issue of the writ of fi,. fa. against the City of New Orleans, cannot be applied to the ease of a judgment enforcing the obligation of a contract entered into by the City prior to the passage of said Act.

The judgment sought to be executed was rendered after the passage of the Act. This Court has heretofore held, in an analogous case, that the law regulating the execution of judgments in force at the time when judgment in a particular case is rendered must govern in that case. Carnes vs. Parish of Red River, 29 An. 608, citing Scott vs. Duke, 3 An. 253 and Com. Bk. vs. Markham, Id. 698.

We think it unnecessary, however, to affirm the principle of those cases ; for our decision here may rest on broader grounds.

The Act of 1870 assumed to divest the courts of power to issue mandamus against the City of New Orleans, and also prohibited tire issue of writs of fi. fa. against her, and substituted for all existing remedies for the execution of judgments a new and peculiar mode of execution. That portion of the Act which took away the judicial power to enforce the satisfaction of judgments by the writ of mandamus compelling the City to levy taxes, within its lawful authority, for that purpose, lias been held by the Supreme Court of the United States and by this Court to be unconstitutional, in so far as it affects judgments rendered on contracts entered into prior to its passage. Louisiana vs. New Orleans, 102 U. S. 203; Wolff vs. Same, 103 U. S. 358; State ex rel. Ranger vs. New Orleans, 34 An. 1149.

This remedy, therefore, remains intact and, such being the case, the question is here presented, whether that part of the Act prohibiting writs of fi. fa. against the City must also be held unconstitutional. Both these remedies co-existed at the date of plaintiff’s contract. The writ of fi. fa., as a mode of enforcing judgments against municipal corporations, is a remedy infrequent, inefficient and rarely applicable. The property of such corporations is usually of a character which exempts it from such process. It is strenuously contended in this very case, and is perhaps a question not free from doubt, that the City of New Orleans is incapable of holding any property which could be subjected to a writ of fi. fa. Dillon Munic. Corp. Sec. 446; Chicago vs. Hasley, 25 Ill. 595.

At all events, in the nature of things, the writ of fi. fa. was a remedy which could only be, rarely and exceptionally, effectual or beneficial.

The usual and ordinary source to which creditors of a municipal corporation look for satisfaction of their debts is the power of taxation. The potent and subsiantial remedy for the enforcement of municipal obligations is to be found in the compulsory exercise of that power within its lawful limitations.

So long as this principal and substantial remedy is left to the creditor, the question is whether the prohibition of the writ of fi. fa. destroys or,-to such an extent, abrades his romedy, as to impair the Obligation of his contract.

We are satisfied that it does not.

“Whatever belongs to the remedy,” says Cooley, “ may be altered according' to the will of the State, provided the alteration does not impair the obligation of the contract; and it does not impair it, provided it leaves the parties a substantial remedy according to the course of justice as it existed at the time the contract was made.” Cooley Const. Lim. p. 286 and numerous authorities there quoted.

The case falls squarely under the authority of Mason vs. Haile, 12 Wheat. 374, where the Court upheld, agaiust a prior contract creditor, the constitutionality of á law abolishing the remedy of imprisonment for debt, saying: “ such laws act merely upon the remedy, and that in part only. They do not take away the entire remedy, but only so far as imprisonment forms a part of such remedy.”

This view disposes of the case and renders consideration of other points unnecessary.

Judgment affirmed at appellant’s cost.

Poché, J. I concur in the decree.


text:
    No. 8855.
    John H. Smith vs. The Orleans Railroad Company et al.
    The Court will not proceed to the examination of a case on an incomplete record, and where the missing paper is a part of the pleadings and has been lost, and no attempt has been made by the appellant to reproduce its contents by proceedings in the lower court contradictorily with the appellee, the appeal will be dismissed. The fault is especially imputable to the appellant where a prior appeal in the same cause has been dismissed by this Court for want of the same paper.
    APPEAL from the Civil District Court for the Parish of Orleans. Lazarus, J.

      A. J. Murpliy and F. W. Baker for Plaintiff and Appellee.

      Ohs. Louque for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

The plaintiff moves to dismiss because the record is incomplete in this, that the answer in the original suit is omitted. The clerk certifies the transcript’s completeness except that paper, which cannot be found after diligent search.”

It appears a former appeal in this case was dismissed because the record did not eontain the same paper, i. e. the original answer, and the motion and order of appeal were also absent. Op. Book 57, p. 261. On appellant’s application for a rehearing, with accompanying affidavit of the clerk of the lower court that the answer was lost, the Court refused to grant it, and mentioned yet another ground for dismissal, i. e. that tlie judgment was unsigned. Ibid, p. ¡37,

Afterwards, the lower Judge signed the judgment under proceedings taken here, and the transcript is again before us without the answer. No attempt has been made to supply a copy of it, or if that be impossible, to supply the contents of it by proceedings in the lower court contradictorily with the plaintiff. Moulton vs. Hodges, 13 Ann. 38.

We cannot go into an examination of the case without the whole record. Sibley vs. Field, 2 La. 491. The absence of the missing document had attained special prominence by the motion to dismiss when the case was here before, and no effort has been made to provide a substitute to it. Bell vs. Bell, 4 La. 470.

Two days after the submission of the cause on the motion to dismiss, the appellant filed a brief with another certificate of the clerk that upon further search he could not find the answer, in which he insists the cause should be remanded to the lower court for the purpose of supplying the answer by secondary testimony.

He has wasted his opportunity to do that, and the appellee cannot be driven hither and thither from court to court to enable his adversary to do that which the action of this Court on his former appeal significantly told him must be done.

The appeal is dismissed.

Rehearing refused.


text:
    No. 8822.
    J. E. Vignie vs. Jules Brady and F. Charpaux.
    It is not necessary that the principals to an appeal bond should sign it. "When it is signed by another, not a party to the suit and not a witness to the signatures, he will be held to have signed it as surety, although his name is not set out in the body of the bond.
    Parol testimony is admissible to prove a mistake in the description of lands set out in a deed of conveyance, where error is alleged, and even to shew that a tract of land described therein was not sold, or intended to be conveyed by tbe deed.
    APPEAL from the Eighteenth District Court, Parish of St. Tammany. Thompson, J.

      milis & milis and M. J). Ogden for Plaintiff and Appellee.

      W. JB. Lancaster and m. Sabourin for Defendants and Appellants,
   On Motion to Dismiss.

The opinion of the Court was delivered by

Manning, J.

The appeal is by defendants, and their bond recites that they are “ bound in solido as principals and as sureties.” It i& not signed by Charpaux, nor need it be as a principal. It is signed by Brady per his attorney of record, and that is sufficient as a principal.

The. motion is on the ground that these parties are set out in the bond as sureties as well as principáis, and there is no name of any other surety in the body of the bond.

There is another signature at the bottom beneath Brady’s, viz: J. Cahier. It is in the place where a surety signs. He does not sign as a witness. There are two witnesses to the instrument, and besides he has the L. S. immediately after his signature. No one but an obligor putshis name at tlte locus sigilli.

The point has been settled by the Succession of Lyons, unreported, and Coyle vs. Suc. Creevy, 34 Ann. 541.

The motion is refused.

On the Merits.

The plaintiff Vignie executed to-F. Charpaux an act of sale of the lands in controversy February 10th, 1871. Charpaux appears in the act as vendee, but he was really buying for Brady, to whom he transferred the title afterwards. The lands are in three tracts.

1. 'The Jeffersonville or Liberty Mill tract on the Tchefuncta river, described by boundaries, and quantity not stated. Brady’s description of it for the assessment roll of 1877 states 2840 acres fronting the Tchefuncta river, formerly the Liberty Mill tract.

2. The Abita tract, 422 acres.

3. A larger tract on the Abita river, described by designation of range, township, etc., from seven to nine miles distant from the first tract, containing 2508 acres.

Vignie alleges that he intended to sell, and Brady to buy, only the first two tracts, and that the third was included in the written sale through error of the draftsman of the deed. This suit is to recover the third tract.

It may be mentioned here that Mrs. Fortier was part owner with Vignie, although the title was in Vignie alone.

The case turns upon the right to introduce parol testimony to explain and vary the written title, the defendants objecting to it on the familiar ground.

It is a universal rule of jurisprudence that parol testimony is admissible to defeat written contracts when fraud is alleged, and error is often akin to fraud. The rule was applied in Palangue vs. Guesnon, 15 La. 311, where the error complained of was a mistake in the description of a lot in this city, and the previous decisions of this Court and other authorities are there cited. Ibid, 313. The same doctrine was approved in Williams vs. Vance, 2 Ann. 909. In Robert vs. Boulay, 9 Ann. 29, parol proof was admitted to shew-that the name of the vendee in the deed was an error, and in Fleming vs. Scott, 26 Ann. 545, the error was identical with that here, a misdescription of lands. The distinction drawn in such cases is that the attempt is not to prove by parol a sale of immovable property, nor to contradict a valid existing written instrument, but to shew that the instrument d.oes not express the meaning and intention of the contracting parties. Levy vs. Ward, 33 Ann. 1033.

The parol testimony being admitted, there can be no doubt of the real intention of the parties. Vignie has listed the third tract for taxation as his own ever since the sale of 1871, and Brady did the same for the first two tracts even down to 1882, and did not list the third tract. Maille, the agent of Vignie, states as a witness on the trial in 1882 that he applied to Brady to renounce ownership of the third tract, and shewed him that it was included in the land described in his deed—read the deed to him—but Brady doubted if Maille was reading from tbe deed, or reading it correctly, and said he had never claimed title to any land under Vignie’s deed but the Jeffersonville and small Abita tract, and when pressed to sign the paper to that effect, answered that he could not renounce title to land that he had not bought, and never claimed to own. Brady’s testimony is very meagre and unsatisfactory, and is said to be so because of extremo illness when it was given in his bedchamber.

The District Judge reviews the testimony with care, and had no doubt upon the subject, nor have we.

Judgment affirmed.

Rehearing refused.


author: Bkrmüdicz, C. J. Fenner, J.

text:
    No. 7886.
    The State of Louisiana ex rel. A. V. Wogan vs. The Mechanics’ and Traders’ Bank.
    In the particular case provided for by Section 284 R. S., an action for forfeiture and liquida* tion of a Free Bank may he instituted by a ereditor and without the intervention of the Attorney General.
    The allegations of the petition^ herein, even if not of themselves sufficient to sustain the demand, are enlarged by the admissions contained in the answer of defendant, which are to be treated as if the same facts had been established by evidence offered and received without objection. These facts establish a state of legal insolvency and of violation of the conditions of the act sufficient to support the decree.
    APPEAL from the Fifth District Court for the Parish of Orleans. Bogers, J.

      Singleton & Browne. E. W. Huntington and H. L. Dufour for the Commissioners, Appellees.

      Thos. J. Semmes, Henry Denis and O. F. Buck for the Appellants.

      James Lingan for the absent Creditors.
   The opinion of the Court was delivered by

Bkrmüdicz, C. J.

This is an appeal by persons claiming to be third parties and to have an appealable interest from a judgment forfeiting the charter of a Free Bank and appointing Commissioners to liquidate its affairs.

The transcript contains no note of evidence, no statement of facts,no bill of exceptions and no assignment of errors. ;

The certificate of the clerk of the District Court is to the effect “ that the foregoing 139 pages do contain a true and correct transcript, as per agreement on file, of all the proceedings had, documents filed and evidence adduced on the trial of the cause wherein the State ex rel. Wogan is plaintiff and the Mechanics’ & Traders’ Bank is defendant, instituted in the said Court and now of record thereof under the No. 9744.”

The case presents substantially the same features as that of Morton vs. Owners of Steamboat Chalmette, 15 An. 708.

As was said in that case, we say in this a “ It is obvious that this Court is not in possession of all the evidence on which the case was tried in the lower court. The certificate of the clerk shows negligence-on the appellant in not causing the testimony of the witnesses to be reduced to writing and in not procuring a statement of facts. We must dismiss this appeal ex officio.”

In that case the appellant was the defendant. In the present one the appellants are third parties.

Under the agreement mentioned in the clerk’s certificate, either party could supplement the deficient transcript at any time before the argument of the case in this Court, by filing original papers or certified copies. Nothing of the kind was done.

They could not have caused the testimony to be taken down, or a' note of evidence made, but they might have procured a statement of-facts. Third parties appealing iiave no greater rights than the parties to the suit. They are all equally bound to cause to be prepared and to submit such a transcript as will enable the appellate court to pass1 upon the merits of the case as the lower court itself did. Where they fail to do so, they are exposed to like risks and perils.

The appellants should at least have filed here an assignment of errors. In the absence of such, the law says that “ the appeal shall he rejected.” C. P. 897. - .....

Appeals in oases similar to tlie present one have invariably been dismissed on motion; but that proceeding is unnecessary, although useful. The Court can proprio motu dismiss such appeals. 15 An. 708; 21 An. 458; 20 An. 141; 23 An. 746; 29 An. 71; 24 An. 20; 30 An. 630; H. D. 76; L. D. 47.

Appeal dismissed at costs of appellants.

On Rehearing.

Fenner, J.

Considering the absence of any motion to dismiss and the agreement of counsel found in the record consenting to the omis-. sions from the record, we will revoke our former decree dismissing the appeal.

On the Merits.

We reach the following conclusions on the questions presented, viz :

1. That under Section 284 of the Revised Statutes, the action for. forfeiture of defendant’s charter was properly brought by a creditor without the intervention or assistance of the State.

2. That the use of the name of the State was non-essential and superfluous and did not vitiate the proceeding, the true plaintiff being the relator.

. 3. That the answer filed by the attorneys of the Bank must be deemed to have been filed with due authority, and dispensed with the. necessity of citation. It would have been absurd to cite a defendant; who had already appeared and answered,

4. That, even if the allegations of the petition were not of themselves sufficient to justify the forfeiture and liquidation, the admissions of fact contained must be treated as if evidence of the same facts had been offered and received without objection, thereby enlarging the original allegations ■ and authorizing the court to act upon such evidence.

5. That the admissions of defendant “ that circumstances have made it its peremptory duty to abstain from receiving further deposits, and making further payments, and that it has suspended payment both in justice to its depositors, creditors and stockholders ; that it is, for the present, beyond its power to meet its cash liabilities,” establish a state of legal insolvency and a violation of the implied conditions of, the laws authorizing its corporate existence, such as justified the foi’feiture of its charter under R. S. Sec. 284 and C. C. Art. 447.

6. That the appellants, who were the President and Directors of the Bank at the date of those proceedings and who are presumed to have authorized the answer of .the Bank, who knew of all the proceedings, who made no objection thereto at the time, who participated, in various ways, in the ensuing liquidation, present no claims to consideration in an appeal only taken by them on the last day of the year allowed by law for a devolutive appeal, and whose asserted motive and interest to appeal are based on an action brought against them by the liquidating Commissioners.

.It is, therefore, ordered that our former decree herein dismissing the appeal be annulled and set aside; and it is now ordered, adjudged and decreed that the judgment appealed from be affirmed at appellants’ cost.


author: Manning, J. •

text:
    No. 8460.
    Mr. and Mrs. Max Nihoul vs. Desforges, Montagnet & Co.
    A married woman cannot recover damages for a violation of a contract, made by third parties with her husband, when there is no proof that the contract was made on her behalf or by her authorization, and when there is neither allegation nor proof that she was carrying on the business for which the contract was made, nor that her husband was her agent therein.
    APPEAL from the Civil District Court for the Parish of Orleans. Houston, J.

      W. S. Benedict for Plaintiffs and Appellants.

      F. MicMnard for Defendants and Appellees.
   The opinion of the Court was delivered by

Manning, J. •

The demand of the plaintiffs is thus presented:

The petition of Mr. and Mrs. Max Nihoul, the latter duly separated in property, both of this city, respectfully shews that on the 1st July, 1880, the said Max Nihoul contracted with the commercial firm of Desforges, Montagnet & Co.,” etc.

The contract was for the delivery of ten thousand barrels of Pitts-burg coal at thirty-eight cents per barrel, and the suit is for the recovery of $2,289.23 as damages for the failure to deliver a part of that quantity, viz: 3,139 barrels.

The contract was introduced in evidence. "It expressly sets out that it is made and entered into between Mr. Max Nihoul of the one part, and the defendants of the other part. The obligatory clause is, “ Mr. Max Nihoul hereby binds himself to comply with the above stipulations, to pay to the said Desforges, Montagnet & Co.,” etc. It is signed, Max Nihoul, agt.”

When this contract was offered, the defendants’ counsel objected to its introduction on behalf of any other person than Mr. Max Nihoul, the party with whom it was made, as appears on its face. The objection was overruled, and the defendants reserved a bill. The plaintiff's then offered in evidence the record of a suit in which there was * judgment of separation in property between Nihoul and his wife, to which the defendants also objected, on the ground that the contract upon which this suit is based was made by them with Nihoul alone, and not with his wife. This was also overruled, and a bill was taken.

Suppose coal had gone down in price instead of up, and Nihoul had refused to take the residue of the coal at the stipulated price, and the defendants were now seeking to recover of his wife the difference as damages for her violation of her contract. With what sangfroid would she repudiate the pretended obligation! With what triumph would she call ou us to scan the paper-writing, and discover the clause or word whereby she bound herself, or whereby the husband even assumed to bind her! She does not appear in it. No allusion is made to her.

Nor does she become more conspicuous in the evidence. There was not even an attempt to shew that the business was hers—that her money was invested in it, or that it was-her property, or that she had any control of it, or responsibility for it—or that being hers, her husband was her agent in its management.

There could be no judgment against her on such contract with such evidence, and for a like reason there can be none for her. The law has but one rule for both sexes alike. Elsewhere, Woman’s word or smile makes law, but when she emerges from that shrine, before which every knightly knee bends in unquestioning adoration, and descends to the plane of ordinary mortals, she clips her angel's’ wings and becomes of the earth earthy.

No judgment is prayed in favor of Max Nihoul except in conjunction with his wife. Indeed, none seems to be desired for him. The allegation is that the contract was made in behalf of his wife, but there is an entire absence of allegation that, he was interested in this business, much less that she was the business man and, as we have already said, no proof of that fact or other cognate matters.

It is therefore ordered and decreed that the judgment of the lower court is avoided and reversed, and that there be now judgment in favor of the defendants against the plaintiffs rejecting their demand, and for costs of both Courts.

Rehearing refused.


author: Fenner, J. Manning, J.

text:
    No. 8645.
    Joseph A. Aiken & Co. vs. Eager, Ellerman & Co.
    In absence of all privity between plaintiffs and defendants, the former, who are lessees of the wharves from the City and have no rights except such as are derived from the City, can claim no rights against the defendants as former lessees, which the City herself could not have urged against them. Under the contract between the City and defendants, as construed by both parties thereto, the defendants had the right to collect and appropriate the entire wharfage due by vessels which had moored at the wharves prior to the expira* tion of their lease? and as the City was estopped from claimiug return of any portion thereof, plaintiffs cannot do so. If the City has transferred to them a right which she did not possess, they must look to her for indemnity, and not to defendants.
    i PPEAL from, the Civil District Court for the Parish of Orleans. £1 Monroe, J.

      W. S. Benedict and Bayne & Denegre for Plaintiffs and Appellants.

      Fred. D. F-ing and J. B. Fustis for Defendants and Appellees.
   The opinion of the Court was delivered by

Fenner, J.

The City of New Orleans leased the wharves to defendants by a contract commencing on the 29th of June, 1875, and ending on the 29th of May, 1881. At the beginning of this contract many vessels were lying at the wharves which remained there and enjoyed the facilities after the rights of the defendants accrued. The City claimed the right to the entire wharfage dues of vessels which moored prior to defendants’ contract. Defendants claimed a proportion of said dues corresponding to the length of time during which the vessels remained after their contract. Defendants yielded, and the contract was interpreted and executed according to the City’s view.

Acting under this construction, defendants collected the entire wharfage dues of all vessels mooring prior to the expiration of their contract—exercising thereby a right which certainly the City could not, in good faith, dispute.

On the day after the expiration of defendants’ contract, the City executed a new lease of the wharves to Aiken & Co., the present plaintiffs.

They bring the present action against the defendants to recover the proportion of wharfage dues collected by the latter from vessels arriving before, but remaining after, the beginning of plaintiffs’ contract.

It appears from the evidence that the wharfage dues are fixed at a certain sum per ton for sixty days or any part thereof. They are the same whether the vessel remains one hour or sixty days. They would seem, therefore, to be as completely earned after the vessel had moored at the wharves as at any period thereafter of the sixty days. Although file ordinances of the City do not prescribe that they become due on the date of arrival or at any fixed day, yet the admitted custom of both plaintiffs and defendants to present the bills for wharfage as soon as the Vessel arrives, establishes the understanding of both that they ate then due. Bills are not usually presented for payment before they are considered to be due. The evidence is that the bills are sometimes paid on presentation, while at other times delays were allowed.

If the'bills were due on arrival, defendants had a right to collect, and owe no account therefor to any one.

But, at all events, it seems clear beyond the possibility of cavil, that the City, under her own construction and execution of her contract with defendants, would have been conclusively estopped'.from questioning the latter’s right to make such collections. There exists no privity whatever between plaintiffs and defendants. Plaintiffs have no rights whatever in the premises, except such as were derived from the City. How could they derive from the City a right which the City herself did not possess?

We may admit that plaintiffs are not bound as to their own contract by a construction which had been placed by the City on a former similar contract with a different party, in absence, at least, of proof of knowledge thereof in the plaintiffs. But this does not help the case. If, as plaintiffs contend, the City conveyed to them the right to collect their share of wharfage- due by vessels lying at the wharves at the date of their contract, the fact that the City did not possess such right, and could not transfer and deliver it, might furnish ground for art action for indemnity against the City, but could create no claim against the defendants.

There is not only absence of legal right in plaintiffs’ case, but even of hardship on them, since, at the expiration of their own lease, they will exercise the same privilege which has been asserted by defendants'.

Judgment affirmed.

Dissenting Opinion.

Manning, J.

The City ordinance does not fix the time when these wharfages are due and collectible, nor is there any stipulation in either of the contracts about it, nor uniform custom regulating it. Sometimes they were collected on the arrival of the vessel (one of the witnesses says most of them were), and at others during the first Week or later. There was no fixed time for collecting them.

Prior to the Eager-Ellerman contract the City collected them herself, and the same thing had of course occurred when that contract begun as now. The City had collected wharfage of many vessels on their arrival, whose period of detention extended over into the time covered by the Eager-Ellerman contract, and these contractors had made the same demand of the City that is now made of them. The City refused to pay any portion of what she had collected, and told them to serve' their successors in like manner. They acted on her suggestion, and’ hence this suit.

• The collection- of the wharfage when the vessel moors seems the’ better rule, and if the practice was made uniform of each contractor collecting on the ship’s arrival and retaining the whole, leaving his successor the same privilege, no injustice would be done anybody.But however excellent the rule, it has been neither made nor acted on save by the City when she arbitrarily interpreted her first contract with Eager, Ellennan & Co. in that way. Had she then incorporated the stipulation in her subsequent contracts, there would have been no room for controversy. The plaintiffs stand on their legal rights, and I cannot gainsay them.

The defendants had judgment below on a ruling that there was no privity of contract between them and the plaintiffs, but it is not a question of contract between these parties. The suit is not upon a-contract, but for money had and received. If the defendants received from the vessels money, a part of which equitably belonged to the plaintiffs, an action will lie to recover such rateable portion. The gist of the action is the obligation of the defendants to refund the money, or such portion of it as rightfully belonged to the plaintiffs.

The justification of the collection of wharfage is the expense incurred in providing facilities for vessels, such as wharves, piers, landings, etc., and the sums imposed are theoretically apportioned to the amount necessary to keep these appliances in-repair. It is reasonable, then, that those whose duty is to keep in repair the wharves and landings, should be entitled to the charges imposed for that special purpose, and time must necessarily enter as a-factor in the calculation where the duty and tlie right have shifted during the period of detention.

If a score of vessels arrived on the last day of Eager-Ellerman’s contract, and paid them the wharfage for the full time they are allowed to remain, the wear and tear of the wharves during fifty-nine days of their stay must be borne by Aiken & Co., and they are entitled to their proportion of the wharfage collected.

The fact that some one connected with the City government had construed Eager-Ellerman’s contract to mean that they were not entitled to any wharfage already collected, and that they chose to accept tliat construction rather than sue the City and get a judgment that might not be worth the getting, furnishes no reason to preclude the plaintiffs from asserting their rights.

The tabular statement in evidence shews that the defendants received wharfage for a large number of vessels whose detention lapped over into the time covered by the plaintiffs’ contract, and that the proportion of the sum thus received, which the plaintiffs are equitably entitled to, is $6,511.75. I think they should have judgment for it, with legal interest from June 14, 1881.


author: Bermudez, C. J. . Manning, J.

text:
    No. 8591.
    Mrs. Carmelite Bachino vs. Martin S. Coste.
    The adjudicate© of Teal estate acquired in the name of a married woman, during the community between her and her husband, cannot be compelled to comply with the terms of the adjudication unless the presumption which makes the property a community asset has been effectually destroyed.
    In such a case it is necessary for the married woman to show, not only that she had sufficient paraphernal funds, but also, that they were invested by her in the purchase of the property, and this, contradictorily with those who might have an interest to dispute her title.
    The declaration of the origin of the price in the act of purchase and the admission of the husband of the truth of the facts thus stated, do not make the property paraphernal. They bind neither creditors nor forced heirs; the latter only to the extent of the disposable portion.
    Although sometimes the title of married women to real estate may be perfect on its face, such'is not the case where the property is purchased during the community. In such a case the married woman, of necessity, is driven to extraneous proof to establish her title, and the purchaser must submit to that evidence and accept the title, if unobjectionable.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.
    . T. Gilmore & Sons for Plaintiff and. Appellant:

      1. Where property is bought in the name of the wife, and the notarial act contains her explicit declaration that it was bought and paid for with her paraphernal funds, the husband, being a party to the act and assenting to the declaration, his heirs are estopped from denying it. Only forced heirs can contest the truth of the declaration to the extent of their legitime, when the act is intended to deprive them of it. Kerwin vs. Hibernia Insurance Company, 35 An.; B.oone vs. Carroll, lb. j Drumm vs. Kleinmau, 3L An. 124.
    2. The proof adduced leaves no doubt of the truth of the declaration.

      Okas. .F Claiborne for Defendant and Appellee.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an action to compel compliance with the terms of sale of a piece of property adjudicated to the defendant. The appeal is taken from a judgment in favor of the latter.

The property was .purchased in the name of the plaintiff, during marriage. The act contains a recital of the origin of the funds with which it states that the acquisition was made, and it was signed by the husband. The latter died a short time before the adjudication of the property to the defendant, leaving four children, the issue of his marriage with the plaintiff, two of whom are minors.

The evidence does not show that the plaintiff received herself the funds mentioned in the act of purchase, and that they identically, or virtually so, were invested in the property acquired in her name. She herself did not testify on that subject.

There is no evidence to show that the husband had no debts.

The property is presumed to be community property. R. C. C. 2399, 2402, 2405.

Where property has that character, the burden rests upon the wife, or husband, who claims it as separate estate, to establish ownership by positive evidence, dehors the recitals of the act, which alone prove little or nothing. This is done by proving not only the existence, the origin of the funds, provenance des dealers, but also the actual investment of the same. This is required whether the claim be raised, as against creditors, heirs, or anyone else. 2 N. S. 258; 11 R. 528; 7 An. 104; 30 An. 169; 33 An. 612.

The property continues to be considered as a community asset until the presumption has been effectually destroyed by conclusive proof of the claim of separate ownership to it. 4 R. 118; 9 R. 214; 29 An. 76; 1 L. 206; 5 An. 741; 11 An. 326; 18 An. 126; 20 An. 531.

In the present instance, the property prima facie belongs, subject to community debts, half to the plaintiff, in her own right, and half to the- children of her husband, the issue of his marriage with her. 6 An. 592; 14 An. 282; 16 An. 145; 20 An. 208; 29 An. 215; 31 An. 736.

The admission of the husband, in the act, that the property was bought by the wife with her paraphernal funds, does not bind his creditors, or his forced heirs, unless the latter, to the extent of the disposable portion only, which is one-third in this case. His heirs would; therefore, be co-proprietors with the plaintiff of two-thirds of his half, or one-third of the whole. 10 An. 686, 784, 739; 28 An. 314; 31 An. 126; 33 An. 612; 34 An. 374.

If the husband has left no creditors, it was incumbent on plaintiff to show it. The record does not even contain a certificate showing that no mortgage inscription existed against him.

If the children have inherited no part of the property from their father, they should have been made parties, those of age directly, those under age, through a proper representative. This was not done.

Requiring such proof from a married woman is imposing upon her no unauthorized or unjust hardship, or putting her to no undue inconvenience.

It may happen that property may. stand in the name of a married woman, so that her title may be indisputable on its face; for instance, where the same dates anterior to the marriage, or is mentioned in the contract of marriage, in whatever character, or was inherited by, or donated to her after marriage; but this is not invariably so.

Where, however, she has invested funds truly paraphernal, during marriage, in a piece of real estate and she offers to sell it and her offer is accepted, it would be impossible for her to prove her title on the face of the act. She would necessarily be driven to extraneous proof, written or oral, or both, as the case may be; but the purchaser who has agreed to buy must submit to that sort of evidence.

A judgment rendered in plaintiff's favor in this case could conclude neither the creditors of her husband nor his forced heirs,'and would, therefore, be no protection to the defendant who, on paying the price of adjudication, is entitled to receive a complete, valid, unclouded title. 7 N. S. 93; 6 L. 484; 11 L. 556; 6 R. 324, 472; 9 R. 417; 2 An. 384; 9 An. 560.

The plaintiff, having failed to tender to the defendant such a title as he was bound to accept, must succumb in her action, and the latter must be released.

The District Judge has, in a well considered opinion, correctly appreciated the facts and the law applicable thereto.

The judgment appealed from is affirmed with costs.

.Poché, J., concurs in the decree.

Dissenting Opinion.

. Manning, J.

It is not disputed that the plaintiff received from the estates of her father and mother the funds with which the property in question was purchased. The act of sale to her, not content with stating that fact, contains the recital of the sums thus received and the source from which they came, giving details and the amplification of them with a minuteness that descends to the smallest particulars. Upon the trial an admission was made, to save the trouble of introducing' the records, that she had received those sums from those sources, and the real objection was, not that the recitals were untrue, but that whether true or not, the purchaser could not be forced to accept a title which required a lawsuit to establish that it was good. If that position be correct, it will only be necessary for a purchaser to refuse a title offered by a married woman, and thus put the seller upon the proof that it is good, to justify him in his refusal.

It was also proved that the husband was without means and had no occupation which brought revenue, that he was supported by others., and therefore could not have furnished the funds which paid the purchase price. This negative proof supplemented the positive evidence that the wife’s paraphernal funds paid the price.

■ No one will controvert the principle that property bought during the community is presumed to belong to the community, but this presumption can always be overcome by proof of the fact that the property was purchased with the separate funds of one of the spouses, and therefore does not belong to the community.

• The effect of the decision just made is to put out of commerce all property bought by a married woman during coverture, for when she has furnished to the purchaser the proofs of public records that the money with which she bought was her own, he can answer they are not satisfactory; and when she by a suit establishes that the proofs are indubitable, he replies he is not bound to take atitle which required a lawsuit to determine whether it is good or not—the lawsuit, be it observed, being provoked by himself.

This is putting a married woman in duriori cam than I ever conceived our law contemplated.

Rehearing refused. •