text:
    Vicksburg, Shreveport and Texas Railroad Company v. The Parish of Ouachita.
    Parol evidence which does not contradict anything in the written proceedings of a corporation is admissible to explain omissions in its proceedings.
    G-iving full weight to the ordinance of the Police Jury of the parish of Ouachita, of June 27,1853, as an ordinance legally adopted, its adoption cannot be considered as constituting per se a subscription to the capital stock of plaintiff.
    O. C. 1794, 1799.
    The Act of 12th of March, 1852, which authorizes Police Juries to subscribe to works of internal improvement, while it required the Police Jury subscribing, to insert in the ordinance the number and amount of shares proposed to be subscribed, and the provision by taxation for the payment of the subscription, does not inhibit the insertion of such other clauses and conditions as the Police Jury may think expedient. The ordinance as adopted by the ¿ury, is its proposition to contract, and the corporation to whom this proposition is made must accept it according to its terms and conditions, or else there is no contract.
    The Act relative to Police Juries approved 9th of April, 1847, provided that« vote of all the members elect of Police Juries shall be required to levy any parish tax or to make any appropriation, There is nothing in the Act of the 12th of March, 1852, which is inconsistent with that of 1847, in this particular.
    APPEAL from the District Court of the parish of Ouachita, Richardson, J..

      McGuire & Ray, for plaintiffs and appellants. Ludeling & Garrett, for-defendant
   Buchanan, J.

The plaintiffs set forth in their petition, filed April 11th,. 1856, that the parish of Ouachita, through its Police Jury, passed an ordinance for the subscription, by said parish, of sis thousand shares, or one hundred and fifty thousand dollars, to the capital stock of the Vicksburg, Shreveport and Texas Railroad Company, payable in ten annual instalments, from March 1854 to March 1863, inclusive, of $15,000 each ; that all the forms of law have been fulfilled to make the said subscription perfect, and to constitute it a valid and binding contract on the part of the parish, which the plaintiffs are entitled to enforce; and in virtue of which, the defendants are now the debtor of the plaintiffs in the sum of forty-five thousand dollars, for three of the instalments above mentioned, of the price of six thousand shares of stock, according to the terms of the ordinance of the Police Jury. The prayer of the petition is, that “ petitioner have judgment, decreeing that said subscription of six thousand shares to the capital stock of plaintiffs, made by said Police Jury, is legal, regular and binding on said parish and Police Jury; and further, that said Police Jury, by its President, be required and ordered to enter said stock subscription on the stock books of said corporation, according to law, and the ordinances aforesaid, and the requirements of plaintiffs’ charter. And further, that inasmuch as in the original ordinances of said Police Jury subscribing said stock, said Police Jury provided for the payment of said stock, by a levy of eighteen and three-quarters per cent, tax on the landed property of said parish of Ouachita, one-tenth or one seven-eighth per cent, thereof, was payable annually for ten years, making fifteen thousand dollars payable annually, commencing on the 1st of March, 1854, leaving due petitioners of said stock, forty-five thousand dollars on the 1st of March, 1856, with five per cent, per annum interest,” &e. prays for judgment for said amount, and that the parish Tax Collector be commanded to collect the same, according to the assessment of landed estate by the tax rolls of 1853, 1854 and 1855.

Defendants except that no cause of action is shown against the parish; and in case the exception was overruled, plead:

1st. The general issue.

2d. The unconstitutionality of the Act of 12th March, 1852, which authorized the subscription by parishes and municipal corporations, to the stock of corporations undertaking works of internal improvement.

3d. That the parish ordinances of the 27th of June, 1853, relied upon by plaintiffs, were illegal, null and void, and plaintiffs have acquired no rights under said ordinances.

4th. That the formalities to be observed, according to the law of March 12th, 1852, for the regularity of the proceedings to carry into effect the said parish ordinances, were not observed, in various particulars, detailed in the answer.

5th. That said ordinances were not approved and ratified by a majority of the voters on whose property the tax was proposed to be levied, as required by the Act of 1852.

6th. That the President of the Police Jury gave notice to plaintiffs, that the parish ordinances of the 27th June, 1853, had not been ratified and approved by a majority of said voters.

7th. That the ordinance authorizing the subscription and imposing a tax to pay the same, has been suspended by an ordinance passed in Januray, 1854, which prohibits the President of the Police Jury from subscribing to the plaintiffs’ stock in the name of the parish of Ouachita.

8th. That plaintiffs never communicated in writing to the President of the Police Jury, their consent to accept said subscription.

9 th. Special denial of the existence of any contract, or of any rights in plaintiffs to claim the amounts set forth in their petition.

In an amended answer, defendants pleaded that the subscription alleged by plaintiffs is invalid and not binding, because five per cent, was not paid, and the parish ordinance contained no provision for its payment at the time when the subscription may be made.

All these grounds of defence, with the exception of the plea of unconstitutionality of the Act of 12th March, 1852, may be treated collectively as the denial of the existence of a perfect contract between those parties, which confers a right of action upon the railroad company against the parish.

The question of unconstitutionality needs not to be considered in this case, as we are of opinion the plaintiffs have failed to establish a sufficient oausa peteridi.

The plaintiff and defendant are both corporations. Their function are defined by law; and their conditions and inodes of action are prescribed and regulated by law. Their agents for the transaction of business, are, in the case of plaintiffs, aboard of directors; in the case of defendants, a Police Jury.' The subject-matter of the contract which is supposed to have been made between these corporations, is the subscription of the latter to the capital stock of the former. The plaintiffs being a joint stock company, whose purpose is the making of a great work of internal communication and transportation by the united means of the corporators, its charter, which is found at page 183 of the Acts of 1853, contains provisions in relation to the form of contribution to its capital.

Section 4th says: “ The said corporation shall go into operation and be organized as soon as shares of capital stock to the amount of two hundred and fifty thousand dollars shall home "been subscribed.

Section 8th names commissioners to receive lists of subscription.

Section 3d. A payment of five per cent, on the amount of each share shall be made at the time of subscribing.

Section 9th. In case of failure on the part of any subscriber to pay the in-stalments on his stock as required, the Board of Directors shall have the option, after thirty days written notice to the defaulter, of forfeiting the stock, and selling it for the benefit of the company, or of compelling, by suit, the payment of such instalments.

The general form, then, of becoming a corporator in this corporation, was subscription, or a signing of the name of the corporator upon lists in the hands of commissioners, or (section 16) upon stock-books kept in the office of the company, with the number of shares of such corporator added to his signature. Such ivas the form adopted by the original contributors to this enterprise, as shown by the preamble to their private act of incorporation, and embodied in their charter by the Legislature.

In the year 1852, by Act approved March 12th, (Session Acts, page 128,) a power ivas given by the Legislature to Police Juries and Municipal Corporations, of subscribing to the stock of corporations undertaking works of internal improvement under the laws of this State, on complying with the provisions of this Act.

As the charter of the corporation of plaintiffs herein, defined the manner in which subscriptions to the capital stock of that corporation could be received, so are we to gather from the law of 1852, how subscriptions by Police Juries to that or any other corporation created for purposes of internal improvement are to be given. And first, we are to notice that the Police Jury is to signify its intention to subscribe to such stock, by an ordinance. Two principal things are required by law to be mentioned in that ordinance — the number and amount of shares to be subscribed, and the levy of a tax on the landed estate of the parish to defray the subscription.

An ordinance was promulgated as having been passed by the Police Jury of Ouachita, on the 27th of June, 1853, of which the first section is in the following words: “Be it ordained by the Police Jury of the parish of Ouachita, that the parish of Ouachita, in the State of Louisiana, subscribe to the stock of the Vicksburg, Shreveport and Texas Railroad Company, shares to the number of six thousand, amounting to one hundred and fifty thousand dollars, and that a tax of one and seven-eighth per cent, be levied on the landed estate," &e.

An objection is made by the defendants, the present Police Jury of the parish of Ouachita, to this ordinance of their predecessors, that it was passed by less than the competent number of members of the Police Jury. The Act relative to Police Juries, approved 0th of April, 1847, section S, (Session Acts, page 82,) provides as follows: “ A vote of a majority of all the members elect of Police Juries, shall be required to levy any parish tax, or to make any appropriation.”

The objection is, that out of nine members elect of the Police Jury of Oua-chita, only seven were present at the meeting which adopted the ordinance in question, and that the vote stood, four for adopting and three against adopting the ordinance. The evidence of this fact comes up to us, in the shape of an admission appended to a bill of exception, and to be considered only in case we should sustain the exception to the decision of the District Judge, who excluded parol evidence. The minutes of the Police Jury merely stated that the ordinance was adopted, but did not give the yeas and nays. The defendants offered to prove by the Secretary and President of the jury which adopted the ordinance, and by other witnesses, the facts aboye recited, but the court rejected the testimony, on the ground that parol evidence is inadmissible to contradict the recorded proceedings of the Police Jury, and the Police Jury being a party, cannot contradict its own acts.

We think this testimony was improperly rejected. It does not contradict any thing in the written proceedings of the Police Jury.

There are several precedents for supplying by parol omissions in the minutes of the proceedings of corporations. 1 Ann. 215, Millaudon v. First Municipality; 2 Ann. 939, Prother v. Minden Seminary.

By the admission annexed to the bill of exceptions, it appears that the tax imposed by the ordinance of the 27th of June, 1853, had not the sanction of the majority of members elect of the Police Jury, as required by the Act of 1847. There is nothing in the Act of the 12th of March, 1852, which is inconsistent with that of 1847, in this particular; and we therefore conclude, the latter statute to be applicable to the present case.

But were this not so, and giving full weight to the ordinance of June 27, 1853, as an ordinance legally adopted, we cannot consider its adoption as constituting per se a subscription to the capital stock of the plaintiffs.

The Act of 12th of March, 1852, which authorized such • subscriptions, while it required the Police Jury subscribing to insert in the ordinance the number and amount of shares proposed to be subscribed, and the provision by taxation for the payment of the subscription, does not inhibit the insertion of such other clauses and conditions as the Police Jury might think expedient. Accordingly, after imposing the tax and providing for its collection, the ordinance proceeds as follows:

Section 5. Be it further ordained, that this ordinance shall not take effect, until the Board of Directors of said Railroad Company shall have communicated, in writing, to the President of the Police Jury of said parish, their consent to accept the subscription herein ordained, payable in the manner herein set forth.

Section 7. Be it further ordained, that within ten days after the closing of the polls, as is provided for in the foregoing (6th) section, it shall he the duty of the President of the Police Jury to notify, in writing, the President of the said Railroad Companj’’, whether the ordinances have been approved and ratified by a majority of the voters on whose property the tax is proposed to be levied:' provided, that-if said ordinances be approved and ratified according to law, that the stock subscription shall be entered on the stock-books of said company, by the President of the Police Jury, so soon as the President and Directors of said company shall signify their assent to said subscription, as is provided for in the foregoing ordinance.

The 6th section directs the President of the Police Jury to order an election to take the sense of the land holders of the parish, as provided by law.

The approval of the tax payers evidenced by a vote, was a sine qua non to the validity of the subscription, by the terms of the statute. But this is not the object of our present remarks. We are considering the 5th and the 7th sections, which are all important, in their bearing upon the existence of a contract. The ordinance is the proposition to contract, and the terms of that proposition cannot for a moment be left out of sight, in arriving at the intention of the party who proposes.

We find, then, that in the 5th section, the Police Jury require that the Board of Directors of the Railroad Company shall communicate, in writing, to the President of the Police Jury, their consent to accept the subscription, payable in five annual instalments. And there was groat reason for requiring the consent of the Board of Directors. For we have seen that the charter of plaintiffs required the payment of five per cent, at the time of subscription. And other sections authorized the Directors to call in the subscriptions as they should think proper, provided the calls did not exceed ten per cent, at one time, nor two calls in a year, and provided ninety days notice of a call was given. Now, here was a proposition to accept a subscription without a cash payment, and payable at the limited rate of ten per cent, per annum. It is evident that these terms of subscription were an essential part of the proposed contract; because the tax imposed to defray the proposed subscription in accordance with the requirements of the statute, could only have effected its object by an acceptance of the subscription upon the terms proposed by the ordinance.

We express no opinion as to the right of the Railroad Company to accept subscriptions on terms different from those prescribed by their charter.

This question, although made by the pleadings and argument, does not require solution at our hands; for there is no proof before us that the plaintiffs, through their Board of Directors, ever gave consent in writing to the terms of defendants proposed subscription. It is true, the Board of Directors, at a session of date the 1st of November, 1853, or more than two months after they had been notified by the President of the Police Jury that the parish ordinance 0f Ouachita, for subscribing to their stock, had not been ratified by the taxa-blc voters, passed a resolution, by which they (the Board of Directors) accepted the ordinance of the 27th of June, 1853, “ as a stock subscription to said company, according to the terms of the ordinance of the Police Jury.”

But it is not proved that this resolution was communicated to the President of the Police Jury. Mr. John Ray was the only witness examined on this subject, and his evidence, which is before us, is vague and inconclusive upon this material point of the notification by plaintiffs to defendants of their acceptance of the proposition to subscribe, contained in the ordinance of the 27th of June, 1853. The 7th section contains internal evidence that this ordinance was merely a proposition to subscribe, and not, as plaintiff’s counsel contends, a subscription. See the proviso in that section copied above, which directs the President of the Police Jury to enter the subscription of the parish on the books of the company, so soon as the President and Directors of the company shall signify their assent to the subscription, in the mode provided for in the ordinance.

In the mean time, the evidence shows us that, on the 18th of August, 1853, five days after the election held for the purpose of taking the sense of the taxable voters upon the proposed subscription, the President of the Police Jury notified the Railroad Company, that the subscription had not been ratified and approved in the mode required by law ; and the Police Jury, by ordinance of January, 1854, suspended their proposition to subscribe, until the question of ratification should be again submitted to the people.

From this review of the facts, it is apparent that there has not been that concurrence of two wills, which constitutes a perfect contract, that can be enforced by an action at law. “A contract consisting of a proposition and the consent to .it, the agreement is incomplete until the acceptance of the person to whom it is proposed. If he who proposes should, before that assent is given, change his intention on the subject, the concurrence of the two wills is wanting, and there is no contract.” O. 0. 1794.

“ The acceptance, to form a contract, must be in all things conformable to the offer.” 0. 0. 1799.

Judgment affirmed, with cost.


source: Caselaw Access Project

author: SpofforB, J.

license: Public Domain

text:
    W. W. George, Curator, v. W. S. Lewis.
    An action for the dissolution of a sale for non-payment of the price is not, in legal parlance, action of nulMi/y or rescission, and is not regulated, as to prescription, either by Art. 8507 or Art. 2218 0. 0.: it falls rather within the general category of personal actions, limited to ten years by Art. 8508.
    An action of nullify or rescission of a contract lies only for an alleged vice in the contract itself, tainting it ab isviiio: whereas, the dissolving condition is never enforced except upon the happening of some event posterior in date to the contract and not affecting its original validity. Nullity and rescission imply the total avoidance of the convention of the parties for some inherent defect therein; the dissolution of a commutative contract for non-compliance by either party with his engagements, is really the carrying into effect of a part of their convention either express or implied.
    APPEAL from the District Court of the parish of Caddo, Land, J.

      Williamson, for plaintiff. Winans, for defendant and appellant.
   SpofforB, J.

The plaintiff’s intestate sold a tract of land to the defendant, in 1845. By the terms of the written contract, the defendant promised to pay a stipulated price within three years from the first day of January, 1845.

The defendant having failed to pay the price the suit was brought in December, 1855, wherein the plaintiff demanded a dissolution of the sale and a return of .the property, in pursuance of Articles 2041 and 2589 of the Civil Code. There was a judgment ordering the defendant to pay the price on or before the 1st December next; and, in default thereof, to surrender the land to the plaintiff, in compliance with the resolutory condition implied in the sale.

The defendant has appealed from this judgment, and contends that it should be reversed because the prescription of five years was pleaded to the action.

It is conceded that, if the action is not barred by a shorter term than ten years, the judgment is correct.

The point has been expressly adjudged in Jones v. Crocker, 1st An. 442, where it was held that actions for the dissolution of sales on account of the nonpayment of the price can be prescribed by the lapse of ten years only.

We do not perceive that this doctrine was impugned by any expression of the court in the subsequent case of Mulford v. Wimbish, 2 An. 443. The subject of the resolution of sales for non-payment of the price was no.t there discussed, as it was irrevalent to the case.

Counsel seems to have misapprehended the technical meaning of the terms “ nullity or rescission of contracts” as used in the Civil Code, and especially in Articles 2218 and 3507. The action to enforce the resolutory condition, express or implied, in a bislateral contract, (C. C., 2040, el seq.,) is not, in legal parlance, an action of nullity or rescission. The Code itself distinguishes the two classes of actions. Article 2126 declares that obligations are extinguished in nine specified modes. “ Nullity or rescission” being classed as one, and “ the effect of the dissolving condition” as another and a different mode.

The action of nullity or rescission of a contract lies only for an alleged vice in the contract itself, tainting it ab initio: whereas, the dissolving condition is never enforced except upon the happening of some event posterior in date to the contract, and not affecting its original validity. Nullity and rescission imply the total avoidance of the convention of the parties for some inherent defect therein: the dissolution of a commutative contract for non-compliance by either party with his engagements, is really the carrying into effect of a part of their convention either express or implied.

In the present case, for example, there is no “ nullity or rescission” sought, but rather an enforcement of the contract of the parties; for, by the judgment appealed from, the defendant is first ordered to comply with his express engagements — that is, to pay the price he promised for the land he bought; in default thereof, he is condemned to comply with his tacit alternative engagement to restore the land, under the resolutory condition which, by legal implication, formed a part of his original contract, as binding upon him as if it had been expressed.

The French commentators differ somewhat as to the true distinction between ‘nullity” and “rescission,” but they agree that both spring out of such infor-malities only as affect the contract from its inception, whilst the term “ resolution” is technically applied to valid contracts dissolved for causes subsequently arising.

Rogron says, “ il y a nullilé lorsque Pacte est entaché d’un vice radical, de maniere qu’il ne peut produire aucun effet. II’ y a rescisión lorsque I’acte, salable en apparence, renferme cependanl un vice qui peut lefaire annuller si l’une des parties le demande ; par example, l’erreur, la violence, le dol, une cause fausse, la minorité, etc.” Code Civil, liv. Ill, tit. Ill, ch. V, sec. 7.

Tropilong clearly developes the distinction between the rescission and resolution of a contract: Mais c’est la preniiére fois peut-étre que deux dioses aussi dissemblables que la rescisión et la résolution se trouvent eonfendues.

La résolution suppose que le contrat a existe valablement; la rescisión suppose, an contraire, qu’il n’y a eu qu’une apparence de contrat, et qu’un vice radical empéehait la convention d’avoir une existence réelle.

La cause de la résolution reside dans un événement postcrieur it la naissance •du contrat, eomme une condition qui se réalise ex post fado, un réméré qui s’ex-erce d’un certain temps; la cause de la rescisión réside dans une nulüté vis-cérale q«¡ remonte it la naissance du contrat.

La résolution peut avoir lieu de plcin droit, la rescisión n’a jamais lieu de cette maniére.

La résolution peut-étre amicable.

La rescisión est toujours forcee.” De la Vente, No. 689.

So Marcade, commenting upon the Napoleon Code, whence the terms in question have been imported into our Code,'remarks: “ Ce qui distingue l’acte resoluble l’aete rescindible, e’est, eomme nous l’avons dit, que celui-ci peut-étre annulé par l’effet d’un vice qui l’a entaché ab initio et des sa formation, tandis que l’autre s’estformée réguliérement, et n’a vu naltre que ex post facto la cause qui permet de l’anéanlir.” And again, “ la demande en résolution n’estpaspré-cisóment une action en rescisión du contrat. Dans cette demande, en effet, on rfattaque pas la convention, on l’invoque au contraire, et on demande l’exécution de la clause, expresse ou sous-entendue qui y est insérée ou reputée insérée. L’action ne tomberait done pas sous la prescription déeeunale de l’art. 1304; elle ne se prescrirait que par 30 ans d’aprés l’art. 2269.” 4 Marcado, No. 570.

We conclude that the present action not being an action of nullity or of rescission, is not regulated, as to prescription, by Article 3507 of our Code as contended by the defendants, nor yet by Article 2218, as maintained by the plaintiff; it foils rather within the general category of personal actions, limited to ten years by the Article 3508. And prescription only began to run when the defendant was in default for the price.

But the appellant’s counsel has argued that the demand for the price was prescribed when this suit was brought, and that, in consequence, the auxiliary remedy afforded to the plaintiff by the implied dissolving condition was lost. The act of sale signed by both vendor and vendee, is the only evidence of the price, or of the terms of payment. The debt, thus evidenced, did not become exigible until the 1st of January, 1848, and the defendant was cited to answer this suit in December, 1845, within ten years from the maturity of the claim.

The Statute of March 5th, 1852, (p. 90,) did not reduce the term of prescription, as that Act relates only to open accounts and promissory notes, whilst the plaintiff’s claim for the price of his land does not fall under either of those denominations.

The plaintiff might then have sued successfully for the price, and claimed the vendor’s privilege upon the land. He resorted to a concurrent remedy by demanding the dissolution of the sale, in case the defendant should persist in refusing to comply with the express terms of his contraqt, enlarged in his favor as they have been by the District Judge, under the equitable discretion Vested in him by Articles 2042 and 2542 of the Louisiana Code. _

The plaintiff has not complained of the judgment; the defendant has no reason to complain: for, by its liberal provisions, he has his election to pay the price or to restore the thing on or before the first of December next. If he should do neither he would despoil the plaintiff,

Judgment affirmed.


author: Mebkick, C. J. Spojtokd, J., Lea, J.,

text:
    Hannah Gee v. G. W. Thompson.
    The decree of separation from bed and board does not dissolve the bonds of matrimony. 0. 0. Art. 188; 0. 0. Art. 152.
    The surviving •wife is not precluded from claiming the marital portion, under Art. 2859 0. C., by the fact of having obtained a judgment of separation from bed and board, and of having lived separate from her deceased spouse up to the time of his death, for though separated in bed and board, she is still the wife, and incapable of contracting a second marriage.
    When the husband died worth $31,000, and the surviving wife was fifty-five years of age, and all the means she had was $1,180, Held: that the husband died rich, and the surviving wife was in necessitous circumstances within the meaning of Art. 2859 of the Code. '

    The Art. 918 C. C., which provides the heir to the entire succession, does not repeal nor introduce an exception into Art. 2859, which provides for the sole case where one of the spouses dies rich, leaving the other in necessitous circumstances.
    The husband or wife, separated in bed and board, is not entitled to the marital portion. Lka, J., dissenting.
    APPEAL from the District Court of the parish of Bossier, Drew, J.

      Lanck'um, & Bay, for plaintiff. Looney, for defendant and appellant.
   Mebkick, C. J.

(Lea, J., dissenting.) This suit is for the marital fourth. By consent of parties at Monroe, the case was reserved to be decided at New Orleans. The judgment in fovor of the plaintiff, decreeing her a separation of bed and board against Benyamin L. Saunders, deceased, establishes by that verity which belongs to judgments, that said Saunders forcibly expelled and drove the plaintiff away from their common dwelling, without any just cause or provocation whatever ; that she remained separated from him by reason of his unlawful acts, notwithstanding her desire to return; that he defamed the plaintiff, and that his conduct was cruel, excessive, and of such a nature and character as to render the living with her said husband absolutely unsupportable.

The wife was, therefore, driven by the conduct of Saunders to place herself under the protection of the law, and we cannot believe that she has placed herself in a worse condition by so doing. The law would be a strange one which should hold out rewards to violence and injustice even by its consequences.

By Article 2359 0. 0.'it is provided, that when the wife has not brought any dowry, or when what she has brought as dowry is inconsiderable with respect to the condition of the husband, if either the husband or the wife die rich, leaving the survivor in necessitous circumstances, the latter has the right to take out of the succession of the deceased what is called the marital portion, that is, the fourth of the succession in full property, if there be no children, and the same in usufruct only where there are but three or a smaller number of children ; and if there be more than three children, the surviving, whether husband or wife, shall receive only a child’s share in the usufruct, and he is bound to include in this portion what has been left to him as a legacy by the husband or wife who died first.

This Article remains unrepealed, and being unaware of any law making exceptions to it, we think we are prohibited from distinguishing where the law does not distinguish.

Two questions, therefore, arise under this Article:

1st. Was the plaintiff the wife of Saunders at the time of his death ?

2d. Did he die rich, leaving her in necessitous circumstances?

I. Article 188 of the Civil Code answers the first of these questions in the affirmative. It declares in the last sentence of the Article that “separation from bed and board does not dissolve the bond of matrimony since the separated husband and wife are not at liberty to marry again, but it puts an end to their conjugal cohabitation and the common concerns (intéréts) which existed between them. The parties are left in this condition for two years,' in the yhope that a reconciliation will take place between them. The law lends itself iwith such facility to the furtherance of this idea, that the reconciliation without any form of law annuls the separation from bed and board.” Troplong du Mariage, No. 1465.

The law, therefore, while it prevents the wife from marrying again, and forming any other establishment, ought not to deprive her of all rights upon the estate of her husband, if he should die in the interval in which she is obliged to consider herself his wife.

The civil and common law writers agree that the decree of separation of bed and board does not dissolve the bonds of matrimony.

Zachariae says: “ La séparation de corps ne rompt pas, mais réláche seulement le lien du mariage. En général, elle laisse subsister tons les effets juridiques que le mariage produit et n’entraine que l’extinction de ceux de ces effets qui' sont une conséquence de la vie commune.” Seconde Partie, § 489. See also Troplong du Mariage, 2 vo., Nos. 1268 and 1464; 5 Pothier, 523.

At common law it is said : “ A divorce a mensa et thoro dissolveth not the marriage, for the cause of it is subsequent to the marriage, and supposes the marriage to be lawful. And as it doth not dissolve the marriage, so it doth not debar the woman of her dower, or bastardize the issue or make void any estate for the life of the husband and wife.” Oo, Lit. 235; Tomlin Law Diet., verbo Divorce.

.O.ur own law looks with favor upon a person occupying the position of the plaintiff in this case, for it expressly declares: “ In case of a separation from bed and board, the party against whom it shall have been pronounced shall lose all the advantages or donations the other party may have conferred by the marriage contract, or since, and the party at whose instance the separation may have been obtained shall preserve all those to which such party would have been entitled, and these dispositions are to take place even in case the advantages and donations were reciprocally made.” O. 0. 152.

The marital fourth, it appears by the fifty-third novel of Justinian, originated in cases of divorce. No decree from the magistrate was required under that law. To protect the divorced wife (in those cases in which she had no dower) from want, was the origin of the marital fourth. The fifty-third novel extended the relief to the wife in the case of the death of her husband, and after-wards, by chapter five of the one hundred and seventeenth novel, the same right was given to the necessitous husband in the estate of his deceased wife, if she died rich.

If we, therefore, consider the origin of the marital fourth, it was designed at first to apply to such a case as we have before us.

But it is said that Article 918 0. 0. proves that it was not the intention of the lawgiver that the wife, separated in bed and board, should inherit, to the exclusion of any natural child or children duly acknowledged, much less any legitimate children of the deceased.

An answer to the foregoing argument is this: The marital fourth is provided for under the head of marriage contract, and depends upon contingencies, and is exceptional in its character. The surviving husband or wife is to have the marital fourth only when the pre-deceased spouse died rich, leaving the survivor in necessitous circumstances. If both of these things do not happen, the survivor takes nothing. Moreover, it has been held by this court that, whether the pre-deceased husband or wife died rich- or not, could only be determined after the settlement of his estate in the Probate Court. 17 L. R. 376. Hence the right to the marital fourth not only depends upon the contingencies named, but also, in order to ascertain the existence of the conditions, time is required for the settlement of the estate in the Probate Court.

Now, on the contrary, in regard to successions, it interests the public order that the instant a person dies it should be known what persons should succeed to his effects. Hence those provisions of law were established under the head Successions, declaring who shall inherit, and casting the inheritance upon the heir so designated, even unknown to himself. The person upon whom the inheritance is by law conferred, and who is called the heir, is so different from the surviving husband and wife claiming the maritel fourth, that such demand, like a demand for a legacy, must be made upon the heir.

The heir, on the contrary, is not obliged to apply to a court of justice in order to be invested with the effects of a succession. He has the right at once to take possession as proprietor. Article 918 of the Civil Code is found under the title Successions, and it provides for the entire effects of the intestate, and designates who shall receive them as heir where the deceased husband left no ascendants, lawful descendants or collateral relations, and did leave a surviving wife not separated from bed and board from him. It declares that such wife shall inherit from him, to the exclusion of any natural child or children duly acknowledged. The law makes her the heir of her husband, whether she be rich or poor.

It is thus apparent, that even as they are embraced under different titles in the Code, so were Articles 918 and 2359 intended to apply to different classes of cases.

The one to provide an heir to an entire succession, the other to relieve the surviving husband or wife when in want.

Now are these two Articles so repugnant to each other that the one repeals the other l If so, which is repealed, the first or the last? Por it is the duty of the court, where it is possible, to give effect to every Article of the Code, and it is incumbent on those who hold an Article void for repugnancy to some other to make the repugnancy appear by the clearest logic, and then also to show that the law, so alleged to be abrogated, is older in date than the repealing statute.

But when we look to the object of the Legislature, we see no repugnancy in the two Articles, and if it should please us to sa,y, that the marital fourth is taken by inheritance, we may read the two Articles together in this way. If a married man has left no lawful ascendants or dccendants, nor any collateral relations, but a surviving wife not separated from bed and board, the wife shall inherit from him his whole estate, to the exclusion of any natural children which he may have left, but if she be separated from her husband from bed and board, and if her husband die rich, and leave her in necessitous circumstances, then, instead of inheriting the whole estate, as she would have done if not so separated, she shall have only one-fourth thereof.

Any other conclusion seems to be based upon this fallacy. Article 918 of the Civil Code does not give to the surviving wife the whole of the husband’s estate, where she is separated from him a mensa et thoro, therefore it is not possible that any other Article of the Code can be intended to give the wife, under any circumstances, one-fourth or a less portion of his estate.

And that this is notan unfair statement of the argument must be manifest from the reflection that if the wife, separated a mensa et thoro, can demand the marital fourth, as against the natural children duly acknowledged, she can, by force of the Article, also demand it against every other relation.

We therefore conclude, that Article 918, which provides the heir to the entire succession, does not repeal nor introduce an exception into Article 2359, which provides for the sole case where the one of the spouses dies rich, leaving the other in necessitous circumstances.

IT. In regard to the question whether Saunders died rich, leaving the plaintiff in necessitous circumstances, we think a comparison of the estate left by Saunders, with the means of support of the widow, will show that this question must also be answered in the affirmative. It is conceded that Saunders’ estate, after all debts are paid, is over $31,000. He, therefore, died comparatively rich.

The wetnesses say the plaintiff is poor. But it shown that she had, in cash, in October, 1850, $825 65, and in November of the same year she lent to Jackson Burnham, $1,130, at eight per cent interest; that he paid her $800 in February, 1852, fifty dollars being in money, and that about the same time she lent Bason, $100. Burnham also swears that S. P. Bee told him that, between 1848 and 1846, he paid plaintiff some $1,600. Now, if this hearsay testimony were to be considered and believed, it would only show that in 1846, seven years before this suit was instituted, the plaintiff had received, either for herself or some one else, $1,600. If S. P. Gee told Burnham the truth, of which vre have no evidence, then it is probable that the $825 65, which Thompson testified to, was a part of it, and that the' $825 65, seen by Thompsan in October, was increased to $1,130 by November, when it was all loaned to Burnham. Treating these loans as successive, as they appear to be, which is in perfect harmony with the testimony of the witnesses w'ho say they consider the plaintiff poor, it makes her probable means about $1,180. If we add into one sum these successive loans of the plaintiff, we make, indeed, $3,600, but it seems to be fictitious rather than real.

The plaintiff is now about fifty-five years of age. She cannot be expected to labor with her hands. It is not shown that she is capable of managing any business. The interest on her $1,180 will produce her ninety-four dollars and forty cents a year, not quite eight dollars a month for boarding, clothing and accessaries. We think her estate inconsiderable with respect to the condition of the husband, and that she is in necessitous circumstances in the contemplation of the Code.

The common law of England gives the surviving wife, whether rich or poor, dower in her husband’s'lands, and by statute she receives one-third of his personal estate. By the same law the husband inherits the personal effects of his wife 'as next of lcin, and if there be issue of the marriage born alive, he holds all of her lands during his life as tenant by courtesy.

Our law, if less generous in this respect, affords something to the necessities of the survivor. We think it should receive a fair if not liberal construction.

We see no hardship, therefore, in decreeing to the plaintiff the usufruct of one-ninth of the property belonging to the succession of B. L. Saundvrs, deceased. The plaintiff will be obliged to give security for the property, and in the ordinary course of nature it will return in a few years to the defendants.

We think the judgment ought to be affirmed.

■''judgment affirmed.

Spojtokd, J.,

having been of counsel for one of the parties, takes no part in the decision of this cause.

Lea, J.,

dissenting. This ease is presented on an appeal, taken by the defendants from a judgment condemning them to pay to the plaintiff one-ninth part of the net proceeds of the estate of Benjamin L. Saunders, in usufruct as a marital portion. In her petition the plaintiff alleges that she is the surviving wife of Benjamin L. Saunders, who died rich, leaving her, his widow, in necessitous circumstances.

. Wherefore she claims the benefit of the provisions of Article 2359 of the Civil Code, allowing her the usufruct of a share of the estate equal to a child’s portion.

She further alleges, in a supplemental petition, that there existed a community interest of acquests and gains between her and her deceased husband, of which she prays the court to grant a decree for a liquidation and settlement. Upon the claim for a recognition and liquidation of the plaintiff’s community rights, there was a judgment for the defendants, which we are not called upon to disturb.

As respects the demand for the usufruct, as before stated, the facts of the case, as disclosed by the evidence, appear to be substantially as follows: The plaintiff and the deceased, after living together as man and wife for about three years, were separated by a judgment of separation from bed and board, obtained by the plaintiff against her husband on the 22d May, 1852, the suit having been previously instituted in February of the same year. About the middle of October, 1862, Saunders died leaving a considerable estate, and the question to be determined is whether, under the circumstances, as disclosed by the evidence, the plaintiff is entitled to the benefit of the provisions of Article 2359 of the Civil Code, allowing the widow in necessitous circumstances the marital portion.

It is insisted that the wife, separated in bed and board, is yet the wife, and continues to be such until a final divorce, and that, where a judgment of separation has been rendered in her favor, (which establishes a presumption that she was not in fault,) the express provisions of our Code secure to her all the advantages or donations the other party may have conferred by the marriage contract. See Civil Code, Art 152.

The misapprehension of the true meaning and spirit of this Article of the Code arises probably in part from its being placed under a title in the Code to which it does not belong. The Article, or at least that portion of it which is applicable to the case at bar, is as follows: “Article 2359. When the wife has not brought any dowry, or when what she has brought as a dowry is inconsiderable -with respect to the condition of the husband, if either the husband or the wife die rich, leaving the survivor in necessitous circumstances, the latter has a right to take out of the succession of the deceased what is called the marital portion,” &c.

Now this Article is found under the title which treats of marriage contracts. It is evident that it has no proper connection with that title. It is a legislative provision, conferring and regulating a right to a portion of the estate of a deceased person, precisely as other legislative provisions confer and regulate the rights of parents, children, brothers, and other relatives of deceased persons upon their estates. It is therefore a law of inheritance, and has nothing to do with marriage contracts. In a certain event it makes the surviving spouse not only an heir but a forced heir, and, with certain qualifications, puts him or her (as the case may be) on a footing with the children or other heirs of the deceased.

Every reader of the Oode is aware that many Articles are found under titles where a proper classification would never have placed them ; but this fact has never been held to justify a construction at variance with their meaning and character. The surviving spouse, who acquires any rights under the Article in question, takes, therefore, by inheritance as other heirs. See 3 N. S. p. 3. See also the opinion of Chief Justice Slidell in the case of Susan Conner v. the Heirs of Conner, 10th Annual, in which the right of the wife to the marital fourth is expressly designated as one of inheritance.

This view of the case is illustrated by a reference to the laws from which our legislation on the subject is derived.

The marital portion was first allowed by the 53d and 117th novels of Justinian, but is more directly derived, as we find it in a modified form incorporated in our laws, from the legislation of Spain. The law 7th of the 6th Parti-das, title 13, from which the Article 2359 of our Oode is directly derived, is found in that work under its appropriate head of Inheritance, and it provides that “if the husband should not leave the wife the means of living independently, and she should not possess them herself, then she may inherit one-fourth of the estate,” &c. This law was established, says Gregorio Lopez, “ in honorum prseteriti matrimonii ut conserventur coryuges in solito statu.”

The humane and salutary provisions of this Article were intended to provide against the consequences of a sudden change in the condition in life of a surviving spouse incident to the death of the other, “ to prevent those who have lived together, in the enjoyment of wealth and the position which it gives, from being suddenly reduced to want.” 3 An. 105.

The law provides that a right which is incidental to the marriage state, (viz: that of mutual protection and support,) should be extended beyond its termination by so regulating the law of inheritance as to appropriate a portion of the estate of a deceased spouse to the support of the survivor. If this view be correct in principle, it presupposes that, at the time of the death of the deceased spouse, the marital relation between the two was undisturbed ; but no such doctrine is applicable to a qpge where there has been a separation from bed and board. In such case the relation of the parties, in consideration of which the marital portion is allowed, have ceased to exist before death. If the husband is not bound to support the wife, separated from bed and board, before his death, it is difficult to conceive upon what principle of equity that event could give her a claim to stand on the same though an unequal footing with the forceed heirs of his estate.

A judgment of separation from bed and board severs the personal relations of the parties, and with it the mutual obligations which are the considerations of the contract. After that event, as both parties are absolved from the duties so they are prohibited from claiming the rights incident to a relation which they have renounced.

It is proper, therefore, that the wife, separated from bed and board, should not inherit from the estate of the deceased husband, and while the law, in a spirit of humanity and wisdom, has, “in honorem prseteriti matrimonii,” provided for the support of her who is truly a widow, it has at the same time, in regard to any rights of inheritance, left the spouses who are separated in bed and board in the position which they occupy in the actual relations of life— that of strangers to each' other.

The 918th Article of the Civil Code is as follows: “If a married man has left no lawful descendents, nor any collateral relations but a surviving wife, not separated in bed and board from him, the wife shall inherit from him, to the exclusion of any natural child or children duly acknowledged.”

If the construction of Art 2359 which has been contended for by plaintiff’s counsel were correct, one Article of the Code would exclude the wife separated from bed and board altogether from a participation in the inheritance of her husband’s estate, and another would place her on the footing of a forced heir to the partial exclusion of his blood relations. No such an anomaly in legislation was intended. The Articles are perfectly consistent with each other if construed with reference to the ordinary acceptation of language as applicable to the ordinary relations of life. Thus, when parents, children or relations are spoken of, we mean legitimate parents, children or relations, and legislation applicable to such, in general terms, is never extended by construction to bastard or illegitimate relations; so general legislation, having reference to the rights of married persons, may be supposed to refer to cases where the marital relation has been undisturbed, not where a partial divorce has been judicially decreed between the parties.

The “ advantages” referred to in Article 152, as being “ retained ” by the party in whose favor a decree of separation shall have been granted, have reference evidently to such as have been conferred by the marriage contract, or afterwards by one of the parties, but can have no application to a legal provision regulating the order of inheritance.

In my opinion the judgment appealed from should be reversed.


author: Mebrjck, C. J.

text:
    R. A. Nott v. Watson, Sheriff, et als.
    G-. transferred the negotiable note oí N. to M. B. & Oo., and took from them their written agreement to hold the note as collateral security for the payment of a debt due by G-. to them, and G-. transferred that agreement to S. — all having been done before the maturity of the note, M. B. & Oo. having been paid the debt due them by G-. — Held; that S., by virtue of the transfer of. said agreement, took the note unaffected by any equities, in relation to it, existing between <3-. and N.
    XX PPEAL from the District Court of the parish of Caddo, Brew, J.

      Crain, for appellant.
   Mebrjck, C. J.

This suit was brought (o injoin the execution of a judgment rendered against the plaintiff and in favor of McKee, Bulltley & Co., upon a note given to one Thomas Gamblin, now an absentee, as a part of the price of a tract of land. Gamblin sold the land with a full warranty. It proved, however, to be subject to a certain mortgage, which the plaintiff was apprehensive he would be obliged to pay, and on which suit had been commenced against him, and he has brought this suit to require the holders of the judgment to give security against such incumbrance before proceeding further with the execution issued on the judgment.

In July, 1849, six months previous to the maturity of the note in question, Thomas Gamblin indorsed the same and placed it in the possession of Messrs. Iler & Kline, 1he agents of McKee, Bulltley & Co., to secure them the amount of an acceptance of $1000, and such further advances as they might make, and to account to Gamblin for the balance. He took from Iler & Kline their written agreement to hold the note for these purposes. On the 26th day of November, Gamblin transferred the receipt of Iler & Kline to F. L. Scogin. McKee, Bulltley & Co. having been paid the amount due them, out of the proceeds of the judgment, the question presented to us is: whether Scogin shall be considered as having acquired the balance due upon the note or judgment out of the regular course of business, and whether the note in his hands is subject (o the equities between the plaintiff and Gamblin'!

It is not unusual to indorse and deliver commercial paper as collateral security.

By the indorsement and delivery of the note to Iler & Kline, the agents of McKee, Bulltley & Co., the legal title to it passed to Bulltley & Co. By the subsequent transfer-of the receipt to Scogin, Gamblin parted with his equitable interest also in the note before its maturity. There was, therefore, nothing left at the maturity of the note upon which the plaintiff’s equities could attach, and it has not been shown that Iler & Kline, or McKee, Bulltley & Co., or Scogin had notice of such equities at the lime they became the owners of the note. The paraph “ ne mrieiur,” does not convey such notice.

Judgment affirmed.

Spoefokd, J., recused.


author: Merrick, C. J.

text:
    Henry M. Bry et al. v. Henry Fouché.
    The petition alleged that plaintiff u is the owner of the following described tract of land, to wit, the lot or fractional number,” &c. This description of title is two vague and general to satisfy the requirements of 0. P. 172.
    Defendant excepted to the petition on the ground that it did not set forth the plaintiff’s title with sufficient clearness. The exception, was overruled. On the trial plaintiff offered a patent to prove his title j defendant objected to it as inadmissible under the pleadings, the plaintiff’s title not being set forth in the pleadings; his objection having been overruled, he excepted, and then filed an amended answer, and after alleging that he was taken by surprise, attacked the patent on the ground that it had been obtained by fraud. Defendant did no.t apply for a continuance nor move for a new trial. Held: That the exception was well taken, but that defendant, by his amended answer attacking plaintiff’s title, was precluded from availing himself of the defect in the petition, , 1
    The plaintiff being in possession of a patent regular in form, and the settlement of the defendant having been suspended and his entry declared illegal by the General Land Office, the court declared that, even in a case of doubt, it would not hold that the- patent had been granted for lands not subject to entry and sale.
    APPEAL from the District Court of the parish of Ouachita, Richardson, J.

      McGuire & Roy, for plaintiffs. Ludeling & Garrett, for defendant and appellant.
   Merrick, C. J.

This is a petitory action. The judgment of the lower court was in favor of the plaintiff, and the defendant appealed.

The defendant excepted to the plaintiff’s petition, on the ground that it did ndt clearly state who was the plaintiff, nor how 3. M. Bry is interested in the suit, and that it did not set forth the nature of the plaintiff's title. The exception was sustained so far as to compel the plaintiffs to disclose'more fnlly for whose benefit the action was brought, hut overruled in the other particulars. The plaintiff amended in order to conform to the opinion of the court. The allegation of title in the petition as amended is, that the said Thankful 3 Bry “ is the owner of the following described tract of land, to wit: the lot or fractional number,-” &c. No description of the title, whether by patent or French or Spanish grants; whether the plaintiff was the original grantee, or whether she holds by mesne conveyances, was given. The petition did not therefore contain af clear and concise statement of the nature of the title on which the action was founded, as required by Article No. 172, No. 4 of the Code of Practice. The exception was well taken, and the plaintiff ought to have been compelled to amencl, or in default of amendment, the petition should have been dismissed.

The defendant prayed oyer of the titles of the plaintiff, and that she might be compelled to produce and file them in court, within a reasonable delay, and in default thereof, that the action be dismissed. The oyer was refused by the Judge. The ruling of the Judge on this point was excepted to, and the correctness of his decision is questioned by the defendant before this court. We are of the opinion that defendant was entitled to the 'oyer prayed for.

On the trial, the plaintiff offered to read in evidence the patent, which was objected to, on the ground that it was inadmissible under the pleadings, as the nature of the plaintiff’s title was not set forth in her petition. This objection was overruled, and the defendant excepted.

After the patent had been received in evidence, the defendant filed an amended answer, in which, after alleging that he was taken by surprise, he avers that “ said patent was obtained through fraud and issued in error, as the land, for which he is sued, is within the limits of a reserved Spanish claim known as the Bastrop Grant, and that at the time said patent bears date, and said entry was made, the said land was reserved from sale or entry, and the Register and Receiver of the United States were prohibited from selling the same, or in any manner disposing thereof.” No effort was made to obtain a continuance of the case, and the defendant did not move for a new trial. Had the defendant relied solely upon his exception to the plaintiff’s petition, and the bill of exception taken to the ruling of the court on the motion for oyer, he would have been entitled to a reversal of the judgment, but by his amended answer, he has cured the defective pleading of the plaintiff, by specially attacking the plaintiff’s title, which he describes in the amended answer. After filing the amended answer, the defendant was precluded, by his allegations, from pretending ignorance of the plaintiff’s title, and his only remedy, if sur prised, was to move for a continuance, or a new trial, neither of which appears to have been done.

On the merits, we find that the plaintiff-is in possession of a patent apparently regular in form, and that the settlement of the defendant has been suspended and his entry declared illegal by the Commissioner of the General Land Office at Washington, and the defendant has been notified that on making the proper affidavit, his purchase money will be refunded him. Moreover, it is not alleged nor shown, that the defendant had a prior equitable right which has been infringed by the patent granted plaintiff’s vendor. We are without power, under the circumstance, to interfere with the action of the General Government in this matter, and whilst we find that the plaintiff’s patent is recognized in the proper department at Washington, we will not hold, (even in a case of doubt,) that it had been granted for lands not subject to entry and sale.

The judgment ought to have reserved to the defendant the right to remove the improvements placed upon the land, unless the plaintiff should elect to pay him the value of the materials and the price of the workmanship.

It is therefore ordered, adjudged and decreed by the court, that the judgment of the lower court be amended, so as to reserve to the defendant the right to remove the constructions and works put upon said tract of land by himself, unless the plaintiff shall, within thirty days after this decree becomes final, declare by writing, deposited with the Clerk of the lower court, her in-intention to keep the constructions and works upon said land, and pay the value of the materials and price of workmanship. And it is further ordered, that said judgment be in all other respects affirmed, and that the appellee pay the costs of appeal.

Re-hearing refused.


author: Lea, J.

text:
    A. Miltenberger v. J. P. Elam, Tutor, et als.
    Tutors have by law the administration of the estates of their pupils, but their powers of administration do not embrace an authority to contract debts. Any one who deals with a tutor, at least any one who lends or advances money to a tutor for account of his ward or pays drafts, exceeding the funds in his hands to their credit, unless said tutor acts within the limits of a previous legal sanction, does so at his peril. The minors being under an absolute disability, it is incumbent on the party who seeks to recover from them, to show, that their indebtedness was contracted in accordance with the specified legal proceedings, or that the consideration of the indebtedness inured to their advantage, to the extent claimed.
    APPEAL from the District Court of the parish of Catahoula, Barry, J.

      Taliaferro and McGuire & Bay, for plaintiff and appellant. Mayo, for defendants.
   Lea, J.

The plaintiff sues for a balance alleged to be due to him on a running account between himself, as a commission merchant and factor, and Samuel Glenn, the former tutor of the defendants, who at the time were minors. In 1847, Samuel Glenn was appointed tutor to the defendants, and acted as such until his decease in June, 1852. The property of the minors consisted of a plantation and slaves, which the tutor continued to work on their account.

In 1861, he opened an account with the plaintiff, which was not closed at the time of his death.

This account contains items for drafts accepted and paid,, cash advanced, plantation supplies furnished, interest, commissions, &c.

After the death of the tutor, in consequence of a contest for the new tutorship, Levi Morris was appointed provisional administrator of the estate, and shipped the crop of 1852, part of it to the plaintiff, and the remainder elsewhere. .

It is contended on !the part of the defendants, that when Glenn was appointed tutor, the estate was but little in debt; that he squandered the revenues of the minors, and contracted debts without any necessity therefor, and without legal authority to an amount exceeding $20,000, for which they are in no manner bound ; that at the time Glenn was their tutor, he had the management of three or four separate plantations, two of which were in the vicinity of the Elam plantation, and that he had a large family of his own to support,; that a large portion of the supplies were furnished for said Glenn's individual use, or for the use of the other plantations under his control, and for his family and friends, and that .a large amount of the supplies were neither needed nor used on the plantation of the defendants-; and lastly, that of the account, as made up, a large portion is for illegal, compound, and usurious interest, and illegal charges.

The general principles by which the rights of the parties must be determined, we consider as well settled. Those who contract with the representatives of minors, know that those with whom they deal, are acting in a fiduciary capacity, and moreover, that they are acting on behalf of those who are by the law deemed incapable of acting for themselves. Tutors have, by the law, the administration of the estates of their pupils, but the powers of administration do not embrace an authority to contract debts. This is not left to inference, the prohibition is absolute,

“ The tutor cannot borrow for the minor, without an authority from the Judge, granted on the advice of a meeting of the family,” The object of the law is manifest; it was intended to prohibit the tutor from doing precisely what it is contended in this case that he had a right to do, to wit, to embarrass the estate of the minors with debts, thus practically alienating it. Any one who deals with a tutor therefore, at least any one who lends or advances money to a tutor for account of his ward, or pay, drafts exceeding the funds actually in hand to tbeir credit, unless said tutor acts within the limits of a previous legal sanction, does so at his peril. The minors being under an absolute disability to contract, it is incumbent upon the party who seeks to recover from them to show that the indebtedness was contracted in accordanee with the specified legal proceedings, or that the consideration of the indebtedness inured to their advantage, to the extent claimed. To recognize the doctrine contended for by the plaintiff rs counsel, would place the estate of every minor entirely at the disposal of a corrupt or even an impr evident tutor. The law has wisely provided against any such result.

It is unnecessary to inquire whether the plaintiff was or was not wrong in placing the proceeds of the shipment made by Morris to the account of the minors as contracted by Glenn. If the plaintiff has a good and valid claim against the minors, sufficient to absorb the proceeds of that shipment, he is entitled to a judgment in his favor.

The only question then is one of fact. To what extent has the plaintiff advanced money, or furnished supplies, which are shown to have inured to the advantage of the minors ; and after crediting him with such sum, what balance exists in his favor or aginst him ?

The plaintiff is chargeable with the nett proceeds of sales of cotton amounting in all to $16,114 41, including the proceeds of the shipment made by Morris.

The evidence shows that the drafts given to Emerson, to Buchanan, Carroll & Co. and to Mrs. Thomas, amounting in all to $4324 2S,were justly chargeable to the estate, having been given in liquidation of actual liabilities due by the succession; nor is there any dispute about the supplies furnished by the plaintiff after Morris had charge of the place, these amounted in all to $739 22, making, with the undisputed drafts, an aggregate credit of $5063 47. The remainder of the items in plaintiff’s account are disputed. The plaintiff’s claim, if allowed, would not only absorb the entire proceeds, amounting as above stated to $16,114 91, but would leave the defendants indebted to the plaintiff in the sum of $3520 47 ; an indebtedness growing out of transactions covering a space of less than two years. The very nature and extent of the transactions were sufficient to put a prudent person upon inquiry, especially when it is considered that they were all based, as is alleged by counsel, upon the supposed ultimate liahili ty. of minors.

It is manifest, that under the pleadings and evidence, the minors can be held responsible only for such advances as were spent in liquidating debts actually due by them, and such supplies as are shown to have enured to their advantage. • A reference to the evidence shows that the tutor Glenn mixed up the monied transactions on behalf of the minors with his own, and sometimes with those of his neighbors, in such a manner as to make it impossible to distinguish between them with any certainty. The evidence is altogether too vague and uncertain to maintain a judgment for any specific amounts, except those above referred to.

The District Judge has allowed to the plaintiff a credit upon the disputed items for supplies and advances, amounting to $4255; of what items this aggre. gate is made up we are not informed, but it exceeds any amount which we consider to be established by tbe evidence, and is perhaps based upon what may be considered an approximative and equitable estimate of the amount of supplies probably needed on a plantation such as that of the minors during the period of time in which Glenn was tutor.

The defendants have acquiesced in the judgment of the District Court, and nothing in the evidence would justify us in raalring any change in favor of the plaintiff.

Judgment affirmed.


author: Meekick, C. J.

text:
    Succession of M. Aaron.
    Creditors of the succession of a deceased husband cannot question the constitutionality of the Act of 1852, to provide a homestead for widows, on the ground that it violates a marriage contract made prior to the passage of the Act.
    Where the claim of the widow under the Homestead Act is set up by way of opposition to a tableau of distribution, the administrator may offer evidence to show that she has appropriated property, to her own use, belonging to the succession of her husband, or may urge any other defence tending to reduce her claim,
    PPEAL from the District Court of the parish of Rapides, Ogden, J.

      Hyman & Gazdbat, for administrators and appellants. Barlow, for opponents and appellees.
   Meekick, C. J.

The administrator has appealed from a judgment recognizing the claim of Mrs. Aaron on behalf of herself and the minor children of the deceased, to one thousand dollars, under the Act approved 17th March, 1852, entitled “An Act to provide a homestead for the widows and children of deceased persons.” Acts of 1852, p. 171. The first ground upon which he hopes to obtain a reversal of the judgment of the court is the alleged unconstitutionality of the Act of the Legislature in question. The question of the constitutionality of this Act was discussed in the case of the Succession of Lanzetti, 9 An. 329. It was there held constitutional, in this respect, that it did not violate Article 115 of the Constitution. We see no reason to overrule that decision. But it is further urged, that inasmuch as the parties were married .in 1848, the Act violates the obligation of the marriage contract, and is therefore unconstitutional. Without adverting to decisions on analogous statutes, it is sufficient to say that the Legislature has power to change or regulate the order of descents. If in so doing it has violated any contract, it has not been with the administrator or creditors of the deceased. The only persons who could complain of such violation of a contract, if it existed, would be the husband and wife or their heirs. In this instance the wife and the heirs of the deceased, so far from making complaint that the contract of marriage has been violated by the statute of 1863, are claiming under its provisions.

The second ground urged for a reversal of the judgment is that the Judge of the lower court erred in refusing to admit the evidence of offered by the administrator to show that the widow had interfered with the community by concealing and disposing of a gold watch, horses, cows and calves, seventy dollars in money from S. Bernestien, a claim against Gent/i'y, about $1500 in cash, and the books, accounts and papers belonging to the community. The testimony was refused by the court, on the ground that there was no allegation of such intermeddling and malfeasance, and to admit the evidence would be to take the party by surprise. The demand of Mrs, Aaron is set up by way of opposition to the tableau of distribution. This opposition was itself in the nature of an answer and required no replication. The administrator could, therefore, urge any defence he had to make, whether by general denial, confession and avoidance or peremptory exception. If the opponent is taken by surprise by the proof, the remedy is by a continuance or a new trial upon the proper showing for that purpose. The ground stated was insufficient to exclude the testimony.

On the trial of a question of this, kind, it is competent on the part of those who oppose the claim of the widow and children, to show the amount of property they hold in their own right, and also the amount of property they have received and used belonging to the succession since it was opened. The widow can only recover the balance of $1000 after these sums are deducted. Whether the fraudulent concealment and use of property belonging to the succession by the widow may or may not occasion a forfeiture of some of her rights, is not now necessary to determine. If such proof should hereafter be adduced, it can then be considered.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that this cause be remanded to the lower court, with instructions to receive the testimony of the witnesses, James O. Wise and Samuel Bernestien, and others, to prove the facts in the bill of exception herein mentioned, and in other respects to proceed according to law; and it is further ordered, that the appellee pay the costs of the appeal.


author: Buchanan, J.

text:
    W. H. Bassett v. L. Barbin, Sheriff.
    An Act of the Legislature, directing the Sheriff of a parish to assess and levy a tax within a School District of the parish, to pay a judgment against the School Directors of such district, is not unconstitutional.
    A peremptory mandamus will issue in such case, to compel the Sheriff to make the levy,
    APPEAL from the District Court of the parish of Avoyelles, Ogden, J.

      S. L. Taylor, for plaintiff and appellee. Siielibern, for defendant and appellant.
   Buchanan, J.

This is an application for a mandamus to compel the Sheriff of the parish of Avoyelles, to assess and levy a special tax within a certain school district of that parish, in obedience to the requirements of -a® Act of the Legislature, approved March 15th, 1855, entitled an Act for the relief of William H. Bassett. Session Acts, No. 229, page 274.

The defendant resisted the application ; and after hearing, the District Court ordered a peremptory mandamus to issue, as prayed for; from which judgment the defendant has appealed.

The reasons shown by appellant against this application for a mandamus, may be comprised under three heads:

1. That the Statute of 1855, was specially directed to the predecessor in office of respondent.

2. That said Act of the Legislature is unconstitutional.

8. That the statute does not designate with sufficient accuracy, the limits of the district within which the tax is ordered to be levied.

The statute in question being composed of only one section, we will preface our remarks upon the several points presented in this case, by transcribing it, at full.

Be it enacted, &c. That it shall be the duty of the Sheriff of Avoyelles, to assess and levy a tax in addition to the State tax, equally on all taxable property within the Second School District of said parish of Avoyelles, sufficient to pay the judgment in the caso of W. H. Bassett v. School Directors of the Second District, in the Thirteenth Judicial District Court of the parish of Avoyelles, together with' the costs of collection, and to collect the same and pay to the plaintiff or to his assigns, the amount of said judgment and costs; and the fees of collection to be the same as the fees for collecting the State tax, and thereafter, if any balance remains, to pay the same over to the School Directors of said Second School District.” •

It is very clear that this statute is not directed to any one incumbent of the office of Sheriff of the parish of Avoyelles, more than to another. It was probably in the contemplation of the Legislature, that the duty would be performed by the Sheriff in office at the time of the promulgation of the law'; but it surely was never intended that that functionary could nullify the law by neglecting or refusing to execute it. When he vacated the office without performing the duty thus imposed, his successor, the present incumbent, was equally bound to perform it, by the terms of the Act The only pica that could haye been listened to, on his part, having reference to his predecessor, would have been, that his predecessor had executed the law. But that is not pretended.

The respondent asserts the Act of the Legislature to be unconstitutional, for two reasons: first, because it is retroactive in its operation ; second, because the provision in the Constitution that the Legislature shall provide for the support of public schools by general taxation, excludes the power to impose a special tax upon a particular district or parochial -subdivision for a purpose connected with public education.

The right of this executive officer to raise these constitutional questions, is by no means clear. Such a discussion would be much more appropriate in the mouth of one of those from whom the tax might be exacted.

We are informed by the record, that this law was promulgated before the respondent became Sheriff. The duty of assessing and levying this special tax, appertained, therefore, to the office when he was elected. He has accepted the office with all the functions belonging to it by law ; and he has no business to question the validity of those legislative enactments which constitute his official rule of action. As well might he, if called upon to fulfil that sternest of his duties, the execution of a capital sentence, question the constitutionality of capital punishment, or the constitutionality of the particular law under which the convict had been prosecuted. Inasmuch, however, as these questions of constitutionality of section 229 of the Acts of 1855, might possibly be made the means of protracting still further, in the hands of other parties, a litigation which has already lasted too long, we will declare our settled opinion to be, that the Act of the Legislature in question, violates no provision of the Constitution.

The respondent also objects, that the statute does not inform him with sufficient precision, what is the parochial subdivision within the limits of which the special tax is to be levied. This is a matter, which according to the evidence before us, can offer no difficulty. There are two, perhaps three, Second School Districts in the parish of Avoyelles, but which of them is intended, cannot but be known to the parochial authorities. The claim of the relator against the School Directors, for which he has obtained judgment nearly six years ago, and to enforce which, after exhausting all other means, the sovereign power of the State has been called into action, originates in the building of a school house by relator. The site of that building must of course be a matter of notoriety, and must identify the district upon which the special tax is imposed.

Judgment affirmed, with costs.


author: Spofford, J.

text:
    Succession of A. Balzaretti—Opposition of Adèle Michamp.
    The claim of a widow, under the Act of ITth March, 1852, providing a homestead for widows, &c., is not entitled to preference over those who were creditors of the community prior to the passage of the Act.
    APPEAL from the District Court of the parish of Natchitoches, Chaplin J.

      Hamilton & Chaplin, for opponent and appellee. J. B. Smith and H. Sqf-ford, for administrator and appellant.
   Spofford, J.

Antonio Balzaretti died in November, 1858, leaving- an insolvent estate and a widow and children in necessitous circumstances.

One Louis Bupleix administered upon the succession.

The opponent, widow of the deceased, on behalf of herself and her minor children, obtained a judgment against the administrator recognizing her right to claim $1000 out of the succession, under the Act of March l7th, 1852, entitled An Act to provide a homestead for the widows and children of deceased persons,” (Sess. Acts, p. 171,) other creditors of the succession were parties to that suit.

Subsequently, the administrator filed an account and tableau, upon which it appears that the claim of the widow was postponed to those of divers creditors whose claims were sufficient to absorb the estate, upon the ground that their debts were contracted before the passage of the Act of March 17th, 1852.

The widow opposed the homologation of the tableau, and claimed a priority over all the creditors except those who had incurred expenses for the sale of the property; this opposition was sustained by the District Judge, and the creditors generally have appealed.

The court erred in disturbing the classiScation upon the administrator’s tableau, to the prejudice of the appealing creditors.

In the succession of Taylor, 10 An. 509, we held that the Statute of March 17th, 1852, should not be so construed as to have a retroactive effect and to oust the claims of bona fide creditors before the passage of the Act. The language of the Statute does not require such a construction; and, unless the obvious meaning of this language imperatively demands it, we should not presume that our lawgiver intended to subvert, at once, the rules of logic and of justice.

This interpretation of the statute, to which we still adhere, renders it un necessary to inquire whether it was competent for the Legislature, under the Oonstitution, to enact a law which would override and defeat the claims of anterior creditors upon the property of their debtor, by introducing a retrospective privilege.

The appealing creditors are not concluded by the judgment obtained by the widow Adele Michamp against the administrator; they were not parties to the proceedings. That judgment did not settle the rank of the creditors inter se. That is done upon a tableau of distribution. Succession of Day, 2 An. 896.

There is evidence in the record that the requisite notices were published.

It is, therefore, ordered that the judgment of the District Court be reversed, and it is ordered; adjudged and decreed that the opposition of Adéle Michamp, widow and tutrix, to the account and tableau of distribution filed by Louis Dupleix, administrator, be overruled, and that the said account and tableau be homologated and confirmed, the cost of the opposition and of this appeal to be paid by opponent and appellee.


author: Spoffokd, J.

text:
    W. Hamilton v. Lewis Phillips et al.
    ■Where a party whose interest is affected by the judgment is not made one of the obligees in the appeal bond, the appeal will be dismissed on motion.
    XI PPEAL from the District Court of the parish of De Soto, Land, J.

      Mitchell, for plaintiff and appellant. Elam, for defendants.
   Spoffokd, J.

The motion to dismiss the appeal must prevail.

The object of the suit is not only to set aside the Sheriff’s adjudication to Phillips of property seized in the hands of Glancy as a third possessor, but to have the property decreed to belong to Olancy, the plaintiff’s vendee, and sold to pay the plaintiff a part of the price alleged to be still due him by Olancy, and for which he prays judgment against the latter.

Olancy was cited, and answered in the court below through a curator ad hoc, appointed to represent him in his absence.

There was a judgment against the plaintiff on all his demands, and he has appealed.

The appeal bond is given in favor of all the other parties defendant, except Olancy, who is not named therein.

He should have been made a party to the appeal, and a bond given in his favor. Armstrong v. His Creditors, 8 An. 368; Hewson v. Creswell, 10 An. 232; Lobelle v. Lobelle, 5 An. 174

It is, therefore, ordered, that the appeal be dismissed, at the appellant’s cost.