text:
    ARNOUS, TUTOR, &c., vs. LESASSIER.
    Eastern Dist.

      February, 1837.
    APPEAL PROM THE COURT OP THE FOURTH JUDICIAL DISTRICT, THE JUDGE THEREOF PRESIDING.
    Where the defendant was capable of contracting, he cannot avail himself, when sued, of the incapacity of the other contracting parties, who were minors at the time, but seek to enforce the contract by their tutor.
    Where one of several heirs, takes a contract from another person, who had purchased the property from the succession, inherited by all the heirs, he will only be bound to pay to his co-heirs such sum, as the original contracting party was bound for, after allowing full credit for all payments and offsets.
    This is an action instituted by René Arnous, natural tutor of his minor daughter, who inherits, in right of her deceased mother, Virginie Lesassier, who, with the defendant, Timoleon Lesassier, and Luke Lesassier, a minor, are the three sole heirs of Madame Rivas, deceased, their common mother; to recover from the defendant one third of the price due on a plantation, purchased originally from Madame Rivas’ succession, by one Elbert Woodward.
    The pleadings^ and facts of this case are so fully set out in the opinion of the court, delivered by judge Bullard, that it is unnecessary to repeat them.
    The district judge estimated the one third part, which was coming to the plaintiff, as one of the three heirs, on account of the sale of the plantation in question, at six thousand two hundred and forty-five dollars, with interest &c., and rendered judgment in her favor, against the defendant, for that sum. The latter appealed.

      Davis, for the plaintiff.

      Stacy and Labame, contra.

   Bullard, J.,

delivered the opinion of the court.

The facts, as exhibited in the record in this case, are, that the plaintiff’s minor daughter, the defendant, Timoleon Le-sassier, and his brother Luke, who is a minor, are the heirs at law of Matilda Rivas. That at the sale of the property belonging to the estate, a plantation, in the parish of Iberville, was purchased by one Woodward, for thirty-five thousand one hundred and ten dollars, payable in four annual instal-ments, with a reservation of mortgage on the land, and for better security, he also mortgaged certain slaves. It appears,, that he paid eighteen thousand five hundred and ninety-eight dollars on account of the price; and having been evicted of a part of the land, in an action brought against him by one Camp, he recovered a judgment, in warranty, against the heirs, for ten thousand six hundred dollars, leaving a balance-due to the heirs, of five thousand nine hundred and twelve dollars, besides interest. On the 27th of January, 1835, Woodward and the heirs, the minors being represented by their tutor, and Lesassier, in his own right, being of age, entered into .a contract under private signature, afterwards duly recorded in the parish of Iberville, by which it was agreed and stipulated, that Woodward sold and conveyed to Timoleon Lesassier, the tract of land in question, with its improvements, for the price of eighteen thousand five bun-dred and ninety-eight dollars, payable in three annual instal-merits, with mortgage on the property. For further consideration of the sale, Lesassier, in his personal capacity, and Arnous, in his own right, and as natural tutor of his daughter' and Luke Lesassier, in his own person, expressly agree with Woodward, that the succession sale and adjudication of the plantation, remain cancelled, rescinded and annulled, and Woodward released from all liability whatever. The last clause of this contract is in the following terms: “ The foregoing act of sale being expressly intended and understood as a rescisión of said succession sale, adjudication and deed thereon predicated, as a taking back of the property by and on the part of the above parties of the first part, as heirs and legal representatives of said Matilda Rivas, and in their personal capacities, and the mortgage for thirty-five thousand one hundred and ten dollars on the negroes of Elbert Woodward, &c., is hereby released, cancelled and discharged.”

On the 21st of February, 1835, the same parties went before a notary public, and entered into a more formal agreement in the nature of a transaction or compromise, for the purpose of putting an end to, and preventing, all litigation and difference between them. This contract embraces, in the first place, a preliminary statement of facts, admitted by the parties, in which are recited the purchase of the land by Woodward, the payment of eighteen thousand five hundred and ninety-eight dollars, in principal and interest, the eviction of a part of the land above mentioned, and the judgment recovered by Woodward against the heirs, for ten thousand six hundred dollars. The agreement then states, that Woodward proposes a compromise on the following basis, to wit: That he sells and conveys to Timoleon Lesassier, the said plantation, upon the conditions that Lesassier should put himself in the place and stead of said Woodward, as to the payment of all sums of money due, or to be paid to the coheirs, on account of the price of the plantation ; that Woodward be discharged from all liability, and the mortgage on his property be cancelled. That Lesassier should refund the sum already paid, in three annual instalments; and that on this being complied with, Woodward would abandon the judgment obtained against the heirs, and pay another judg-mentof six hundred dollars, recovered by Camp; and finally, that Woodward had, previously, by act, under private signature, dated January 27,1835, sold and conveyed to Timoleon Lesassier, the aforesaid plantation, with its appurtenances. The heirs declare that they accept this proposition ; they released Woodward from all further responsibility, and he renounces, abandons and releases the judgment. The last article of this contract declares, that, “ between the persons composing the party of the second part, it is well understood by and between the said Timoleon Lesassier and René Arnous, that the said Timoleon Lesassier, in purchasing the said plantation from the party of the first part, he comes under all the liabilities to pay the price thereof, in the same manner said Woodward became subject to, at his purchase thereof as aforesaid.”

This suit is brought by one of the co-heirs, to recover of Lesassier, her share of the original price of the tract of land, as assumed tobe paid by the latter, and to maintain her right of mortgage and vendor’s privilege.

The defendant, in his answer, alleges, that the private act of the 27th January,.1835, so far as it relates to the interest of the plaintiff, is null and void, unless the same shall be ratified by her, on attaining the age of majority. That the succession sale could not be legally cancelled, and the property be reinvested in the heirs without the authorization of the judge upon the advice of a family meeting. He further avers, that the act did not constitute a sale to him, but was intended to reinvest said property in the succession, and that the subsequent authentic act was a nullity, inasmuch as the property had already been reinvested in the succession, and could not, legally, be sold to the respondent; and that the contract is not binding on the plaintiff’s pupil. He denies that he has any title to the property, except as one of the heirs. Finally, he denies that he has received a good and valid title ; avers that he is in danger of eviction, and prays that he may be authorized to retain the price, until the plaintiff makes him a complete and perfect title, and secures him from all danger of eviction.

' Where the defendant was capable ox con* tract!ng, he can-wh^n^sued^^Óf the'other raconf trading parties, »t1theeüme,nbut th^contraeMjy their tutor.

It is clear, that the defendant was not without capacity to purchase, and that Woodward, the owner under the former adjudication, was capable of selling. As between them, the contract, under private signature, amounts to a sale, for a specific price, a part of which the vendee engages to pay to Woodward, and a part to the heirs. One clause in the contract appears a little obscure; and might be construed to mean, that, although in relation to Woodward, Lesassier was to be considered as the purchaser, and alone bound to refund the part of the price already paid; yet, as between the heirs themselves, the contract should be regarded as a rescisión of the succession sale, leaving' the property as if no such sale had taken place. And yet, Woodward does not sell to the heirs genei-alty, nor do they comé under any obligation to pay any part of the price, except by implication. If this contract stood alone, perhaps such would be its effect between the heirs themselves. But the subsequent authentic act contains a clause, assented to by Lesassier, wholly inconsistent, it appears to us, with such a pretension. It is expressly agreed, that Lesassier, in making this purchase, comes under all the liabilities to pay the price which Woodward was under, in virtue of the first sale; that is to say, he engages to pay the balance due on the first purchase.

But it ip contended, that these contracts are null and void, because the defendant’s co-heirs were minors, and incapable 0f validly entering into such a contract, without the advice J ° . of a family meeting, and the authority of the judge. We concur in the view taken by the district judge, of this part of ^ defence, that the defendant, who was capable of binding himself, cannot avail himself of the incapacity of the other contracting parties. Such is the positive doctrine of the ' ^°de5 °ften recognized by this court. Louisiana Code, article 1785. 6 Louisiana Reports, 231.

Where one of several heirs takes a contract from another person, who had purchased the property from the succession, inherited by all the heirs, he will only be bound to pay to his coheirs such sum as the original contracting party was bound for, after allowing full credit for all payments and offsets.

In endeavoring to ascertain the amount due by Woodward to the heirs, at the time of his sale to the defendant, it must not be forgotten that he had already paid eighteen thousand five hundred and ninety-eight dollars, and he had a judgment for ten thousand six hundred dollars, which was a legal offset for that further amount, leaving a balance of five thousand nine hundred and twelve dollars, with interest, according to the original contract. That is the only amount which the heirs, collectively, could have recovered from Woodward ; and the plaintiff is entitled to one-third. The defendant is entitled to a credit for that amount, because, by the contract, he takes the place of Woodward; and as he gets but part of the land originally sold, it would be unjust that he should pay the whole price, without regard to the part, of which his vendor had been evicted. The District Court appears to have taken a different view of the rights of the parties, and to have adjudged to the plaintiff the whole amount of the balance supposed to be due her by the succession of her mother. But, it appears to us, she can recover in this action, only so much as the defendant owes on his purchase from Woodward, without regard to a general settlement between the co-heirs. According to a fair construction of the contracts, we consider, that twenty-nine thousand one hundred and ninety-eight dollars, of the original price, had been extinguished, either by payments, or by compensation, consequent on the eviction, and that Lesassier owes the heirs a balance of five thousand nine hundred and twelve dollars, with interest at ten per cent., from April 1st, 1833, secured by the vendor’s privilege on the land ; and the plaintiff must recover one-third.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided, and reversed ; and proceeding to give such judgment as, in our opinion, ought to have been rendered below, it is further adjudged and decreed, that the plaintiff recover of the defendant one thousand nine hundred and seventy dollars and sixty-six cents, with interest at ten per cent., from the 1st of April, 1833, and the costs of the District Court, with the privilege of vendor on the tract of land described in the petition, and that the plaintiff and appellee pay the costs of this appeal.


source: Caselaw Access Project

author: Martin, J.,

license: Public Domain

text:
    ROWLAND vs. PASCAL’S EXECUTOR.
    Eastern Hist,

      February, 1837.
    APPEAL FROM THE COURT OF PROBATES FOR THE PARISH AND CITY OF NEW-ORLEANS.
    When there is nothing to show the character of the mandate, with which an attorney is clothed, it will not be presumed that he had authority to receive service of citation.
    If a defendant is a resident of the state, and is absent, service of citation is to be made by leaving it at his domicil. If he reside out of the state, a curator ad hoc should be appointed.
    This is an action on a promissory note, executed by one Paul Pascal, in the state of Virginia, the 2d of January, 1819, to the plaintiff, for five hundred add thirty-three dollars. Suit was instituted in June, 1836. The plaintiff alleges, that Pascal, in his lifetime, and within five years, immediately before bringing this suit, acknowledged he owed the amount of the note sued on to the petitioner, and that the defendant, as his executor, refuses to pay the same. He, therefore, prays judgment for the amount thereof, with interest.
    Citation issued on the petition, and the sheriff made the following return of service: “ Served a copy of the petition and citation, on George Strawbridge, Esq. attorney of Thos. Boudar, (the executor,) he being absent from the state.”
    No answer was filed.

      Where there-is nothing to ter'of'thíman-date, with which an attorney is clothed, it will thaU^had^au-serv'íc^oFcTtltion.
    ¡s resident of the ^ice Sof citation is to be made by leaving it at his domicil. ofthestate acu-rator,, hoc should he appointed,
    Judgment being taken by default, the plaintiff proved the execution of the note, and the rate of interest in Virginia, and had the judgment made final. The defendant took an appeal therefrom..

      Randall, for the plaintiff.

      Strawbridge, contra.

   Martin, J.,

delivered the opinion of the court.

The sheriff’s -return shows, that the citation was served i on Strawbridge, the attorney of the defendant, who was absent out of the state. No answer being made, a judgment, by default, was taken, and afterwards confirmed, 7 J 7 7 The defendant appealed. ,

Nothing shows the character of the mandate, with which the attorney was clothed. It cannot be presumed, that he had authority to receive citations. The defendant is stated to be absent. If he be a resident of the state, the citation should be left at his domicil; if he reside out of the state, the appointment of a curator ad hoc, should have been provoked, A1 A

It is, therefore, ordered, adjudged and decreed, that the iudsrment of the Court of Probates be annulled, avoided and J , ,i , .. .... . reversed, and that the petition be dismissed with costs in both courts.


author: Nicholls, C. J.

text:
    No. 13,614.
    State ex rel. Alice Chappuis vs. Hon. Andrew P. Marmouget, Recorder et al.
    Syllabus.
    An application to one of the Judges of the Supreme Court for writs of certiorari and prohibition directed to a recorder of the city of New Orleans, will be dismissed, but without prejudice when the recorder, in answer to a rule to show cause why the writs should not issue, announces his intention to discontinue certain proceedings which were made the basis of the application and charged to be violative of relator’s rights under a suspensive appeal then pending in the Supreme Court.
    ON APPLICATION for Writs of Prohibition and Certiorari.

      E. Howard McCaleh and Arthur B. Leopold for Relatrix.
    Respondent Judge pro se.

   The opinion of the court was delivered by

Nicholls, C. J.

At the instance of the relatrix, an order issued from this court to. the defendant recorder, ordering him to forward to it a certified copy of all the proceedings had before him in the cases referred to in relatrix’s application for writ of prohibition, to the end that their validity might be ascertained.

The prohibition sought was based upon allegations that she was the owner of certain described property on Customhouse street, in the City of New Orleans; that she had been notified by the mayor of the city to vacate and remove from the premises, on the ground that she was occupying the same in violation of ordinance No. 13,032 of the city, as amended by ordinance No. 13,485; that having refused to remove therefrom, the mayor caused an affidavit to be made against her, charging her with a violation of said ordinances, and refusing .to move on the mayor’s notice; that she filed a demurrer to said affidavit, and the same having been overruled, she was compelled to go to a trial 'and pleaded not guilty, as would appear by a record of said proceedings, No. 216 of the docket of the Second Recorder’s Court of the City of New Orleans ; that after hearing evidence and counsel, the recorder wrongfully and illegally held, that the offense consisted in relatrix’s refusal to comply with the order of the mayor to remove, in violation of the decision of the Supreme Court in the case of the State ex rel. ILohn vs. Judge (50 Ann. 550), and fined her five dollars, and in default of the payment of the fine, condemned her to suffer imprisonment in the parish prison for thirty days, notwithstanding relatrix, through counsel, took exception to the ruling of the court; that the recorder refused to hear any evidence other than that she had refused to obey the mayor’s order, and relatrix took exception to said ruling, whereupon she applied for and obtained a suspensive appeal to the Supreme Court, and perfected it by giving bond, and that said court was now vested with jurisdiction over said appeal; that notwithstanding said appeal and objections urged to trial, the recorder of said court insisted on and did try relatrix on another affidavit for the same offense, to-wit: with having refused to move on the notice from the mayor, which alleged offense was embodied in affidavit No. 217 of the docket of said court, entitled City of New Orleans vs. Miss Alice Ohappuis; that in said case, relatrix pursued the same procedure as in the former, filed a demurrer, pleaded not guilty, and the recorder insisted on her going to trial, overruling her objections thereto; found her guilty, as charged, and inflicted a fine of ten dollars, or in default of payment of said fine, ordered that she be committed to the parish prison for a period of thirty days, as would appear from the record of the proceedings in said case No. 217; that there were then pending against her, before the said recorder for the same offense, as specified in said causes in which appeals had been granted to the Supreme Court, eight more affidavits, being numbered respectively Nos. 218, 219, 220, 255, 256, 257, 258 and 259 on the docket of the said recorder’s court; that it was the intention of the mayor of the City of New Orleans, in violation of her personal liberty and right of property, to cause to be made a separate affidavit for each and every day she remained in her own home and abode, notwithstanding she had taken appeals to the Supreme Court, to test the constitutionality of said ordinances, and on which she had already been tried by the recorder; that the recorder was without jurisdiction to entertain said affidavits, numbered 218, 219, 220, 255, 256, 257, 258 and 259 of the docket of his court, and try relatrix thereon, until the said cases on appeal were first tried and determined by final judgment of the Supreme Court; that the said recorder, in entertaining jurisdiction of said cases pending said appeals, and having declared his intention to entertain more affidavits for each and every day she remained in her own home and abode, exceeded and would exceed the bounds of his jurisdiction, for the following reasons:

1st. That pending the appeal to the Supreme Court, all proceedings should be stayed, and the recorder should not entertain further jurisdiction over relatrix, for the alleged violation of said ordinances, until after the final judgment' and decree of the Supreme Court on said appeals;
■ 2nd. That said recorder wrongfully and illegally held that the offense consisted in disobeying the mayor’s notice by refusing to move, without any further proof of violation of the ordinances; that said recorder was wholly without jurisdiction to entertain, hear and determine the offenses charged in said affidavits Nos. 218, 219, 220, 255, 256, 257, 258 and 259, or to receive separate affidavits for each and every day she remained in her own home and abode, and property, for the reason that the said offenses are and would be exactly the same as that in eases Nos. 216 and 217, from which appeals had been taken, and over which the Supreme Court had jurisdiction; that said recorder could not hear, try, render and pronounce judgment in said cases pending said appeals, and in attempting to do so, he is usurping and would usurp jurisdiction over cases which the Supreme Court alone is authorized to try and determine; that said recorder in so trying relatrix on the same charge for which she had been tried and convicted, put her twice in jeopardy for the same offense, and he will continue to try relatrix for the same offense and continue to receive more affidavits for each and every day she remains in her own home, abode and property, in violation 'of the Constitution of the United States and of the State of Louisiana ; that said recorder was without power to divide the violation of a municipal ordinance into parts corresponding with the number of days relatrix resided in her house, and thus inflict eight more sentences of twenty-five dollars each, or in default of payment of said fines, imprisonment in the parish prison for a period of thirty days each, or two hundred and forty days for the same offense; that this amounts to excessive fines and unreasonable punishment, in violation of the bill of rights in the State of Louisiana, Article 1, Constitution of 1898, sections 6 and 12, as was held by the Supreme Court in the case of State ex rel. Garvey vs. Whitaker, Judge, 47 Ann. 527, and State ex rel. Dobson vs. Justice of the Peace, 49 Ann. 57; that the object of the law providing for the punishment for the violation' of an ordinance means punishment for .the offense at the outset to prevent its repetition, and punishment afterwards for its repetition, as was held by the Supreme Court in State ex rel. Schoenhausen vs. Judge, 47 Ann. 701; that the alleged violation of the said ordinances is only a continuation of the same transaction, specified in affidavits Nos. 216 and 217 (now on appeal to the Supreme Court).

The recorder forwarded to this court copies of the affidavits filed in suits Nos. 218, 219, 220, 255, 256, 257, 258 and 259 stating that they were the only contents of the records in said numbered suits; that no proceedings whatever had been taken in said suits except that they were fixed for trial on the 13th of July, 1900, but trials of the same were continued on joint motion of counsel for plaintiffs- and defendant; that the writ of prohibition should, therefore, be refused (State ex rel. Hug vs. Davey, 39 Ann. 507; State ex rel. Baker vs. Recorder, 43 Ann. 119); that none of the said éases have been tried, and there is no evidence contained in the records and no notices whatever from the mayor.

Further answering, he stated that he had submitted said eight affidavits to the city attorney, and that he had been advised that the same were faulty in not stating correctly the offense the city charged against the defendant; that if it were not for the order of the court staying further proceedings in said cases, therein issued, he would dismiss the said affidavits without ddlay; that the defendant was, also, charged in suits Nos. 216 and 217 with having violated city ordinances Nos. 13,032 and 13,485, and that said cases went regularly to trial and judgment, and suspensive appeals were taken therein to the Supreme Court under the Nos. 13,618 and 13,619, and as the cases would hereafter be considered by the court, he did not undertake in the present proceeding to sustain the judgments therein.

Opinion.

The object had in view in ordering the recorder to forward copy of his records to this court, was to ascertain whether or not the proceedings taken before himb subsequent to those involved in suit No. 216, were really as asserted to be by the relatrix, for the same identical offense which was charged in the affidavit filed in the first proceeding (No. 216), and inaugurated after the relatrix’s suspensive appeal in that suit had been perfected, and, if so, to determine and declare whether the latter were or were not violative of the stay of proceedings secured by the suspensive appeal, and an interference with the matters then submitted for adjudication to the Supreme Court.

The order of this court was not specific, as it should have been; it should have, in terms, ordered up the records in suits Nos. 216 and 217, particularly, as the foundation of relatrix’s application was the suspensive appeal taken from the judgment taken in suit No. 216.

Relatrix’s pleadings were not as precise and certain as they should have been, though she declared that the offense charged in all of the affidavits was the same as that charged in suit No. 216, and that if she had violated the ordinances, she was guilty of but one single continuing offense. These declarations were mere conclusions, and she failed to declare that as a fact she had received only one notice from the mayor to remove, and that that was the identical notice which she was charged in the first affidavit with having refused to obey.

The records sent up furnish no evidence on that point. The proceedings in suits Nos. 216-217 being before the Supreme Court sus•pended by appeal, and the recorder having declared his desire to dismiss the proceedings in suits Nos. 218, 219, 220, 255, 256, 257, 258 and 259 and his intention to do so if not prohibited by order of the Supreme Court, I have concluded to decline to grant the present application, but this without prejudice to the right of the relates to renew it. I do not think matters are, presently, in such shape as to call for or require the present issuing of the writs. In connection with this matter, it may be well for me to call attention to the fact that the Supreme Court does not take judicial notice of the ordinances of the City of New Orleans, also to call the attention of the defendant recorder to the remarks made in the matter of the City of New Orleans vs. Collins, 52 Ann. 977, to the very objectionable character of the affidavit made in that case.

Those made in the proceedings brought up under this application are of the same objectionable kind.

Eor the reasons herein stated, the present application is refused, but •without prejudice and under reservation of a right to renew.


author: Monroe, J.

text:
    No. 13,589.
    State ex rel. Louis P. Hart vs. John St. Paul, Judge, Division “C.” Civil District Court.
    Syllabus.
    Where, in a suit, brought by the wife, for separation from bed and board, the husband, by exception, declines the jurisdiction of the court, he can not be compelled to litigate the question of the plaintiff’s right to alimony until the exception to the jurisdiction has flrst been heard and determined: 'and, his objection thereto having been overruled and an' appeal denied, 1 he may obtain relief by prohibition.
    ON APPLICATION for Writs of Injunction, Prohibition and Certiorari.

      Denegre, Blair & Denegre for Relator.
    Respondent Judge pro se.

      Garleton Hunt and Henry Benshaw for Mrs. Anna Eerguson Bromado, wife of Louis P. Hart, Respondent.
   The opinion of the court was delivered by

Monroe, J.

Relator alleges that he is sued for separation from bed and board, and is ordered to show cause why he should not pay alimony 10 the plaintiff in the suit; and that he has appeared solely for the purpose of excepting to the jurisdiction of the court, the facts being that he resides in Georgia, and is in Louisiana only temporarily, on business, and that the plaintiff is a non-resident of this State, and is here only to prosecute the suit filed by her. He further alleges that a commission having been issued to take testimony in support of his exception, he objected to proceeding, in the meanwhile, with the trial of the rule for alimony, and his objection having been overruled, was refused an appeal from said judgment. He, therefore, prays that the judge a quo be enjoined and prohibited from further proceeding- with the trial of the said rule for alimony until he shall have heard and determined the question of his jurisdiction as to the main action.

The respondent judge makes return to the effect that a plea to jurisdiction dispenses only with an answer to the merits; that jurisdiction is presumed until the want of it is established; that, for the purpose of the wife’s claim for alimony, no account is taken by the law (O. C. 146) of the character of the husband’s defence; and that, as an order for alimony in a divorce suit is nothing more than a judicial sanction and enforcement"(under abnormal conditions), through the judiciary, of the duty of the husband to support the wife, he considers it competent to proceed with the trial of the rule taken by the plaintiff in the case before him. With this return is the record in the ease to which it. refers; and, from this record, it appears that the plaintiff alleges that she was married to the defendant in 1876, in Charlestown, Mass.; that, in December, 1896, he abandoned her, withdrew from the common dwelling, without cause, and has since refused to live with her, or to permit her to live with him, and refuses to speak to her, or to provide, for her, though he is in receipt of a large income, etc.; and that his conduct is cruel and insupportable. She prays that the Christian Woman’s Exchange be assigned, as her domicile during the pendency of the suit; that her husband be “summoned, according to law, to return,” etc., for $250 per month pendente lite as alimony, and for a judgment of separation from bed and board. The exception filed by the defendant is as follows, to-wit: “Now comes Louis P. Hart, made “ defendant herein, for the sole and only purpose of excepting to the “ jurisdiction of this Honorable Court, on the ground that neither he “ nor the plaintiff in this case are domiciled in, or residents of, the “ City of New Orleans; that he is a citizen of the State of Georgia, “with domicile and residence in the City of Savannah, Georgia, and “ is only in this State temporarily, on business, and that, therefore, “ this Honorable Court is without jurisdiction to determine his matri- “ monial status, which is solely subject to the laws of his domicile, and “ cannot entertain any suit for separation or divorce filed by his wife “ against him.”

It is well settled in this State, that a proceeding for the recovery of alimony cannot be maintained by a married woman against her husband as an independent proceeding, and apart from an action for separation from bed and board or divorce (Heyob vs. Her Husband, 18th Ann. 41; Moore vs. Moore, 18th Ann. 613; Holbrook vs. Holbrook, 32nd Ann. 15; Carroll vs. Carroll, 47th Ann. 1135). From which it follows that the jurisdiction of the court a qua, to hear and determine the rule for alimony in the case before it, is dependent upon its jurisdiction of the main action, dnd as the greater includes the less, so the right secured to the defendant, by express provision of law, to withhold his answer upon the merits of the main action until the question of jurisdiction raised by him is determined, necessarily includes the right to withhold his answer Upon the merits of a proceeding“which is incident to, and dependant upon, such main action.

But, if this were not so, the prayer for judgment of separation and the prayer for alimony, are contained in the same petition, and the exception to jurisdiction applies to one as well as to the other. If, then, it would be incompetent for the trial judge to ignore the exception, and force the defendant to a trial upon the merits of the demand for separation, why is it not equally incompetent to ignore it, in order to force him to a trial upon the merits of the demand for alimony.

The law referred to above reads: “The defendant need not plead to “■the merits, if he declines the jurisdiction of the court before which “ the suit is brought.” C. P. 322.

It is plain from this, that, so long as the defendant is relieved of the obligation of pleading to the merits, just so long are the merits beyond the reach of the court, since it is not to be supposed that a defendant is excused by law from pleading to the merits, in order that he may be deprived of his defense, and that the case may be decided against him. But it is said that, excusing the defendant from pleading to the merits, by reason of his declining the jurisdiction of the court, is to be construed as meaning that he is not to be excused from pleading otherwise as occasion may require, and that the rule for alimony is a proceeding, apart from the merits, with respect to which, the court may act, and the defendant 'enjoys no'immunity by reason of his plea to jurisdiction. We take it, however, that the reason of the law, and the law itself, are equally applicable in the one case as in the other. If the court has no jurisdiction, it ought to find it out at once, since being without jurisdiction, the only order which it could lawfully make in a case before it, would be one striking such case from its docket; and, in the case now pending in the court a qua, if it should turn out that there is a lack of jurisdiction in that tribunal, a judgment against the defendant decreeing a separation would not be more unlawful than a judgment for alimony. There is no more reason or authority, therefore, for proceeding in the matter of the rule for alimony before disposing of the exception to jurisdiction, than for so proceeding in the matter of the demand for separation.

The remaining question is, whether the remedy is to be found in the present proceeding, or whether the relator should resort to an appeal, which question, though not raised by the respondent judge, is suggested in the brief filed by counsel on behalf of the plaintiff in the pending suit. Assuming that, being presented in that form, it may properly be considered; it appears that an appeal, from the judgment overruling defendant’s objections to being forced to a trial of the rule for alimony in the present condition of the case, has been refused. The grievance complained of, therefore, is, that, notwithstanding that he is excused by law from pleading to the merits of the case, and as we hold, from pleading to the merits of the rule, until the court shall have first determined the question of its jurisdiction; and notwithstanding that the corollary to this proposition is that the trial court is, in effect, denied the right to hear and determine matters pertaining to the merits, whether of the main case or of the rule which is the incident thereto, until it shall have determined said question, the defendant is about to be forced into a trial upon the merits of said rule, without such action having' been taken.

It is evident, then, that if he is so forced to trial, an appeal from the judgment which may be thereupon rendered will not afford relief quoad the grievance of which he complains. In the case of Hernandez vs. E. A. Monroe, Judge, 33 Ann. 923, to which we have been referred by counsel for the plaintiff in the instant suit, it appears that Hernandez, the defendant in a suit for separation, excepted to the jurisdiction of the Civil District Court; that the exception was regularly tried and overruled; that, thereafter, a rule was taken against him for alimony, to which he set up, by way of exception, that he had brought suit against his wife, in the Parish of St. B'ernard, for divorce; that an exception filed by her to the jurisdiction of the court had been overruled, and that, hence, the Civil District Court ought to be prohibited from further proceeding with the rule for alimony pending before it. This court said inter alia, that the Civil District Court “was certainly “ competent to pass on and decide the question of its jurisdiction of the “ ease, raised by the exception of domicile. It had the same right and “ authority to determine this question as the court ’of St. Bernard had “ to decide on the question of its jurisdiction of the suit between the “ same parties instituted before that court. * * * As the parties “ are husband and wife, and as they can have but one domicile, and “but one court — the court of that domicile — can legally entertain “ jurisdiction of a suit between them of the character mentioned, it is “ very evident that one suit or the other was brought before the wrong “ tribunal,” and it was held that the remedy quoad the question presence! was by appeal.

It thus appears that the courts in the parishes of Orleans and St. Bernard, respectively, had both pursued the course which the relator insists should be pursued in the instant ease, i. e., passed upon the exceptions to their jurisdiction, before proceeding to hear and determine other matters.

It is quite true that the right of the wife to recover alimony, pendente lite, cannot, in the nature of things, be affected by the ultimate determination, upon its merits, of the suit, pending which, such alimony is to be allowed; but, it is also in the nature of things that she cannot recover alimony under the (authority of a judgment rendered by a court without jurisdiction, and hence the defendant ought not and as we think, cannot, be compelled, to litigate such a question until the court to which it is presented determines that the objection to its jurisdiction is not well taken.

It is, therefore, ordered, adjudged and decreed that the rule nisi herein issued be now made absolute and that the respondent judge be accordingly restrained and prohibited from further proceeding to hear and determine the rule for alimony now pending against the relator until he shall have first heard and determined the question of his jurisdiction presented by the exception filed by said relator.

Rehearing refused.


author: Blanchard, J.

text:
    No. 13,519.
    Gustave Guillory et als. vs. Avoyelles Railway Co., Sheriff, et als.
    Syllabus.
    1. By the terms of the Statute (Act 106 of 1892) an election held to take the sense of property tax-payers, on a proposition to grant a tax in aid of a railway enterprise, may be contested by tax-payers in interest on grounds of “fraud, illegality and irregularity.”
    2. But the suit must be brought within three months after the promulgation, of the result of the election.
    3. The words “illegality and irregularity” are broad in their scope and embrace all matters preceding the election and leading up to it, as well as matters affecting the election itself.

      4. Thus, a suit contesting a special tax election, and seeking to avoid the tax levy predicated thereon, on the ground that the petition of property tax-payers addressed to the Police Jury, asking that body to order the special election, contained less than one-third of all the property taxpayers of the Parish, must be brought within three months from the promulgation of the result of the election.
    5. Only' those persons who are named in the record as parties plaintiff or defendant, or who made themselves parties thereto by intervention, are within the meaning of the term “parties to a suit.”
    6. The timely institution of a contesting suit by certain of the tax-payers which suit is compromised and discontinued, cannot have the effect of suspending the perscription or peremption of the statute in favor of other tax-payers who did not sue in time but bethought themselves to sue after-wards.
    7. Substantial compliance on part of the grantee with the terms and conditions of the grant suffices.

      APPEAL from the Tenth Judicial District, Parish of Avoyelles — Edwards, </., ad hoc.

      Adolph Vallery Coco and Q E. Gouvillon & Son for Plaintiffs, Appellants.

      Eoiue, Spencer & Qoche and William. E. Peterman for Defendants, Appellees.
   The opinion of the court was delivered by

Blanchard, J.

This action seeks to have declared void a levy of special taxes in favor of defendant company.

The tax assailed is a five-mill tax for ten years — from 1895 to 1904, both inclusive — upon the taxable property in the Parish of Avoyelles.

The object of the tax was to secure the construction of a railway through the parish.

The railway was constructed, is now in operation and has been for the last several years.

The position of defendants is that the tax in aid of the railway enterprise was duly petitioned for by one-third of the property taxpayers of the parish; that this petition, addressed to the pólice jury, was favorably considered by that body; that an ordinance was duly adopted submitting the proposition to the vote of the property taxpayers; that the directions of the law relative to this submission were duly observed; that the tax election was held and a majority of the property taxpayers in number and amount of properly, voting at said election, voted in favor of the proposition; that this result was duly declared by the returning officer of the parish and by proclamation of the police jury; that predicated upon the election and its result an. ordinance was adopted by the jury levying the tax; that the conditions prescribed in the grant of the tax were fulfilled by the construction of the railway in the manner designated and within the limit of time fixed; and that thus the tax has been earned, is exigible and the railway company is entitled to the avails thereof.

The position of the plaintiffs, who are property taxpayers of the parish, is that one-third in number of the property taxpayers did not petition the police jury to order the tax election and submit the proposition of the railway company to the voters of the parish owning property; that at the election which was held a majority in number and amount of the property tax-payers did not vote for the tax, but against it; that the proclamation of the result was false and fraudulent and served as no sufficient basis in law for the levying of the tax; that the railroad was not constructed between the points indicated within the time designated; that, therefore, the tax was not legally earned and is not due the company; and that the beneficiary is estopped to claim the tax by reason of certain conduct subsequent to the holding ■ of the election and the levying of the tax.

From a judgment rejecting their demand plaintiffs appeal.

The date of this tax election was July 26, 1894, and the date of the promulgation of its result July 30, 1894.

The date of the ordinance of the police jury levying the tax was August 21, 1894.

The limit of time fixed within which the road was to be completed and put in operation was twenty months from the date of the election —July 26, 1894. It, therefore, expired March 26, 1896.

This is the third suit that has been brought contesting this tax election.

The first was instituted by George W. Sentell and other taxpayers on October 23, 1894.

This was within three months of the date of the promulgation of the result of the election and was timely.

The suit having been dismissed on exception, an appeal was prosecuted here, with the result that the judgment was reversed and the cause remanded for trial on its merits.

Sentell vs. Police Jury, 48 La. Ann. 96.

Following this, a compromise was entered into between plaintiffs and defendants by the terms of which the Railway Company released and abandoned the five-mill tax for ten years on the property owned by those in whose behalf the Sentell suit was brought, in consideration of which the suit was discontinued. This compromise, which is stated to have been entered into upon the authority of C. O. 3071 et seq., was made the judgment of the court and the suit formally discontinued April 24, 1896.

In a little more than thirty days later J. M. Watson and five other taxpayers instituted a second suit seeking to avoid the tax levy.

It is stated in the petition that the action is brought not alone on behalf of the petitioners but also of 500 other taxpayers whose names are not included in the petition owing to the inconvenience which would result therefrom. . .

This suit remained on the docket without issue joined until February 6, 1899, when on motion of plaintiffs’ counsel it was dismissed at their costs.

The reason of the long delay is explained in this way: — -That the road had been placed in the hands of a receiver and to save the tax from passing under the receivership it was allowed for the time being to be tied up in court by the then pending suit and the injunction which had been issued therein.

It is shown that the final dismissal of the suit was the result of a compromise by which the railway company, while maintaining the validity and binding effect o"f the tax and securing the acknowledgment by the plaintiffs in that suit of its validity, agreed to release and remit in favor of all the taxpayers of the parish the special tax of and for the year 1895, together with interest and penalties, and the payment of a reasonable amount as fees to plaintiffs’ attorneys.

The instant suit — the third of the series of-contesting actions — was filed April 29, 1899. This was less than three months after the discontinuance of the Watson suit.

Besides setting up the regularity of all proceedings leading up to the levy of the tax, defendants pleaded as estoppel that plaintiffs participated in the election and acquiesced in its result by waiting, before taking action to contest the tax, until large sums of money had been expended in the construction, completion and equipment of the road.

They, moreover, pleaded the limitation of Act 106 of 1892 in bar of plaintiff’s suit.

This statute gives the right, and the only right the law accords, to contest elections held to take the sense of property taxpayers on a proposition to grant a tax in aid of a railway enterprise. By its terms such an election may be contested by taxpayers in interest on grounds of “fraud, illegality and irregularity.” But the suit must be brought within three months after the promulgation of the result of the election.

The words “illegality or irregularity” are broad in their scope and embrace all matters preceding the election and leading up to it, as well as matters affecting the election itself — i. e., the holding bf the election, the casting and counting of the votes, and the ascertainment and promulgation of the result.

Thus, if it he charged that the police jury, in ordering the election, did so on petitions of property taxpayers less than one-third in number of all the property taxpayers of the parish, this is good ground for contest under the statute, but must be taken advantage of within the time limited by the act — three months from the promulgation of the election ■ — otherwise the right to contest on that ground, as well as on all other grounds affecting the legality and regularity of the tax, is lost.

This is the effect of the decisions of this court in Taxpayers vs. Police Jury, 52 La. Ann. 466; Railroad Co. vs. Sheriff, 52 La. Ann. 524; and Taxpayers vs. Tax Collector, 49 La. Ann. 1039.

The reason of the law is that if there be grounds for contesting the tax, those who complain should bring the matter to the attention of the courts within a reasonable time — not wait until the railway company, acting upon the faith of what has been done and of the inducement held out, has gone ahead and expended large sums of money in prosecuting the enterprise, the promotion of which was the object of voting the tax.

When a statute creates a right of action and stipulates the delay within which that right is to be executed, the delay thus fixed is not properly speaking one of prescription, hut it is one of peremption.

Statutes of prescription simply bar the remedy. Statutes of peremption destroy the cause of action itself. That is to say, after the limit of time expires the cause of action no longer exists; it is lost. Taylor vs. Cranberry, 94 N. C. 525; Cooper vs. Lyons, 9 Lea (Tenn.) 596.

The limitation pleaded against plaintiffs’ action must be held good as to all matters leading up to the tax collection, including the holding and conducting of the election, the ascertainment and promulgation of its result and the levying of the tax thereunder, unless the suits, first, of Sentell and others, and afterwards, of Watson and others, had the effect of suspending, as to the present plaintiffs, the bar of the statute.

Such is the contention of plaintiffs.

They insist that as the Sentell suit was filed within three months of the promulgation of the election, the Watson suit within three months of the dismissal of the Sentell suit, and the present action within three months of "the discontinuance of the Watson suit, the bar of the statute has never applied, the cause of action to contest the tax has never been lost to any taxpayer.

The argument- is that the three suits must be regarded as a continuous attempt on the part of the taxpayers of the parish to set aside this tax, and that prescription or peremption has remained suspended.

The present suit was brought nearly four and a half years after the promulgation of the result of the tax election.

The railroad was long before constructed and in full operation — an instrumentality greatly assisting in the development of the parish and promoting the convenience and welfare of its people.

None of the present plaintiffs were parties of record to either of the suits of Sentell or Watson. Some of them claimed to have been and were of those who instigated the Watson suit and assisted in having it brought. But none of them were named as plaintiffs, or in any manner appeared in the record of the case as parties thereto.

Their contention is, being interested in the suit and same having been dismissed without their consent, they are entitled to renew the same, and ask that the present suit be considered such renewal.

The Watson suit was discontinued in open court on motion of counsel of record for plaintiff, with authority to that end from all parties who were plaintiffs of record.

It well settled that only those persons who are named in the record as parties plaintiff or defendant, or who- make themselves parties thereto by intervention, are within the meaning of the term “parties to a suit.” Merchants’ Bank vs. Cook, 4 Pick. (Mass.) 405; Walker vs. Hill, 21 Me. 481; Houston vs. Drew, 36 S. W. Rep. 802; McPike vs. Walls, 54 Miss. 136; Davis vs. Higgins, 91 N. C. 382.

None others are bound by the judgment which may be rendered therein.

This court, in Missouri, Kansas & Trust Co. vs. Smart, Assessor, et als. 51 La. Ann. 423, where the legality of a special railroad tax was involved, reasserted this doctrine by laying it down that only those taxpayers who made timely resistance to the tax were concerned in the disposition of the suit brought, and that those who did not join- in the suit are conclusively presumed to have acquiesced in the result of the election as it was officially proclaimed, and could not now be heard to complain. See p. 423.

That case, in effect, decides that those taxpayers who failed to make protest seasonably for themselves, cannot, after the lapse of time' fixed by law for contesting a tax election, be heard to complain; that they cannot predicate any subsequent action in the courts on their-part on the legal proceedings which other taxpayers had taken in time. In other words, that the timely institution of a contesting suit by certain of the taxpayers, which is compromised by releasing the plaintiffs therein from the tax, and the suit is dismissed, cannot have the effect of suspending the prescription or peremption of the statute in favor of those other taxpayers who did not sue in time but bethought themselves to sue afterwards.

The case last cited also effectually disposes of, against plaintiffs, their contention that defendant Eailway Company, by releasing certain of the property taxpayers who had brought a contesting action within the limit of time prescribed by the statute, from the burden of the tax, destroyed the validity of the ordinance of the police jury levying the tax in its favor and estopped defendants from laying further claim to the tax. Also their contention that the obligation of the tax, being a solidary and indivisible one, the release of certain taxpayers was the release of all. Also their further contention that by the release from the tax of certain of the property in the parish, there was an infringement of the constitutional guaranty of the equality and uniformity of taxation.

With regard to the contention of plaintiffs that the tax has not been earned, we are of the opinion that the road was substantially completed within the time prescribed by the petition of the property holders and by the ordinance of the police jury.

The law (Sec. 7 of Act 35 of 1886) enacts that no part of the tax voted by property taxpayers shall be paid until the railway, in favor of which the same is voted, shall have been completed and in operation to such points as were specified.

Tracking this law, the taxpayers’ petition stipulated that the road was to “reach the aforesaid points and be in operation within twenty months from the time said tax is vote d,” and that no portion of the tax shall be paid until the railroad is completed and in operation between the points specified.

The ordinance levying the tax sets forth that the tax collector should retain its proceeds in his hands and not pay it, or any part of it, over to the beneficiary until and unless due and proper proof is made to him that the road was constructed and put in operation throughout the entire length within twenty months from the time of the holding of the election.

This proof was made to the satisfaction of the tax collector and the police jury.

On the day the limit of time expired, the latter body met in extra session at the county seat of the parish, where the last spike completing the road was to be driven.

One of the objects of the meeting was to appoint a committee to accept or reject the railroad.

The jury adjourned over until the next day when the president of the Railway Company appeared before it and announced the completion of the road in contract time and invited the jury to inspect the same.

Whereupon a resolution was adopted expressing to the president the thanks and appreciation of the people of the parish for the energy and determination he had shown in carrying to completion a great public enterprise in the face of extraordinary difficulties.

A committee of the jury was appointed to examine the road and make report.

This committee, when the police jury met again some ten days later, reported that they had, on April 6th, gone over the entire line of the road, found it in good condition and running order, affording safe and easy transportation of freight and passengers.

Whereupon a resolution, reciting the timely completion and operation of the road, and formally accepting same, and ordering the tax collector to proceed with the collection of the special tax, was adopteci.

The- evidence shows that a post had been placed at a point supposed to mark the corporation line of Marksville, the county seat, where the track of the railway was to cross same,-and that before the limit of time expired the cross-ties and rails were laid to that point. Not with the best material in the way of cross-ties, and in the most approved style of laying railway tracks, it may be true, but, nevertheless, sufficiently so, we think, to meet the conditions of the grant.

It seems that some doubt developed as to where the corporation line actually was.

This doubt was not solved until during the trial of this '’ase when an order of survey was made and executed, definitely locating the same.

It then appeared that the post referred to was not the line, but the difference is not enough to defect substantial compliance.

That the Railway Company was popularly held at the time to have met its contract, is evidenced by the fact that the day following the one upon which it reached Marksville, a public meeting of citizens was held there in celebration of the event, a large crowd was present, speeches were made, among them one on behalf of the police jury accepting the road, and a silver service was presented to the manager of the road.

With regard to the reeonventional demand of the defendants, which was disallowed by the judge a quo and as to which an amendment of the judgment is asked here, taking all the circumstances of the ease into consideration, we are not disposed to disturb the finding of the district judge.

The judgment appealed from is affirmed.


author: Watkins, J'.

text:
    No. 12,976.
    A. A. Goodwin et als. vs. J. H. McNeely et als.
    Syllabus.
    The plaintiffs having become adjudicatees of the interest of the deceased in a certain Spanish grant, at a succession sale, and in a few days thereafter the authors of the defendants having become adjudicatees of a certain plantation which embraced a portion of said grant, but as the property of a judgment debtor, the latter’s plea of ten years prescription will be maintained and enforced as a muniment of their title, the proof disclosing that they entered into actual possession and enjoyment of a portion of the grant immediately after the sale, and in good faith maintained the same for a period of ten years prior to the institution of suit for same, and with full knowledge of the plaintiffs.
    APPEAL from the Fourth Judicial District, Parish' of Grant— Machen, J.

      Robert P. Hunter for Plaintiffs, Appellants.

      William G. Roberts for Defendants, Appellees.
   The opinion of the court was delivered by

Watkins, J'.

This is a petitory action instituted by Allen A. Goodwin and Howard G. Goodwin, claiming ownership of two undivided thirds of a certain tract of land — each as the owner of one-third— against John II. McNeeiy, and certain other persons as his supposed tenants; and the prayer of their petition is, that they be decreed to be the owners of same, and put in possession, and that John II. McNeeiy be condemned to pay them two-thirds of five hundred dollars per annum for the use and occupancy of said lands from the 1st of January, 1884.

On the trial, there was judgment rejecting the plaintiffs’ demands; and further particularly decreeing that J. H. McNeeiy is the owner ol two undivided third interests, and Ross Bailey McNeeiy one undivided one-third interest in the land in controversy. It further specially decreed, that “the line marked V. X. Y. Z., on the map marked defendant “ X., on file in this cause, is the line of division between the land of the “plaintiffs and the land of the defendants, J. H. McNeeiy and Ross “ B. McNeeiy — the land of the defendants being that in controversy in “ this case lying above said line, and that of the plaintiffs lying below “ said line.”

From that judgment the plaintiffs have prosecuted a devolutive appeal, after having sought in vain to obtain a new trial.

Plaintiffs allege themselves to be the owners of two-thirds undivided interest in the land in dispute, and that the remaining one-third interest therein belongs to Mrs. Elizabeth McKnight, a resident of the parish of Grant, who refuses to join them in prosecuting this suit.

The land claimed is thus described, viz:

“ That certain tract, piece,, or parcel of land together with all the “ buildings and improvements thereon, situated in township six (6) “ North, of range three (8) West, in the land district north of Red “river, containing two hundred (200) acres more or less, lying and “ being in the northeastern portion of Spanish section eighteen “ (18), otherwise known as the Louis Charles DeBlanc Spanish “ Grant, bounded as follows, viz:
“ On the West, or fronting towards Red river, by lands in same “Spanish section eighteen (18) now claimed by Mrs. Elizabeth “McKnight, and minors Lesage, George H. McKnight and Levin “ Smith; South by lands formerly belonging to the Citizens’ Bank, “ and now to Dean Hickman and others; East by lands of the os“tate of Ludlow McNeely; and north by lands of McNeely and “ McKnight — being situated about four miles below the town of “ Colfax, &c.”

Petitioners allege, that they purchased said land with others “in “ Spanish section eighteen, constituting the entire interest of the suc- “ cession of Meredith Calhoun in said Spanish section eighteen at his “ succession sale made in pursuance of an order of the probate court to “pay debts, on the 2nd of December, 1882, as will be shown by the "proces verbal of said sale, and the deed of sale from Howard Mc- “ Knight, administrator, * * * which is duly of record in the book “ of conveyance records of the parish of Grant,” etc.

They allege that they subsequently sold an undivided one-third interest in said land to Eobert S. Cameron, by deed of record, and that same was subsequently conveyed to Mrs. Elizabeth McKnight.

The plaintiffs’ petition contains the following important and material averment, viz:

“ That at the time of said sale and until recently, they were induced “ to believe, by false and fraudulent representations made to them, that “ the interest of Meredith Calhoun in the said Louis Charles DeBlanc “ Spanish Grant consisted of two hundred and fifty acres only, and “ that the two hundred acres now sued for, belonged, originally, to Mrs. “ Mary Smith Calhoun, and not to Meredith Calhoun; and that it has “ been sold to Cameron and McNeely at the sale under execution in the “ suit of L. L. Levy vs. Mrs. M. M. Ada Lane, and had been acquired “by them in the partition suit with Mrs. Lane; and by Ludlow Mc- “ Neely in the partition suit between himself and K. S. Cameron, and “by John IT. McNeely under the will of Ludlow McNeely.”

It further avers “ that in fact, neither Judge Smith, nor Mrs. Mary “ Smith Calhoun, ever owned any part of the Louis Charles DeBlanc “ Spanish Grant, or of section eighteen in that grant; but that the " whole of same did in fact belong to Meredith Calhoun, and to his suc- “ cession, and to petitioners by their purchase at his succession sale.”

It further represents “that any and all presumed acknowledgment “ or recognition of any title in the said Cameron and McNeely, Ludlow “McNeely, or John H. McNeely, in any partition proceedings, be- “ tween them, and in any sales and conveyances referring to boundaries, ’or stating quantities; and, particularly, any and all acts of the “ petitioner, H. G. Goodwin, as one of the experts in making the parti- “ tion between Mrs. M. M. Ada Lane, and Cameron & McNeely; and in “ any and all acts, or the recitals of either or both of them in the act of “ partition between themselves, and Mrs. Elizabeth McKnight, who had “acquired the one-third interest of R. S. Cameron, * * *; and in “.sales by petitioner, Allen A. Goodwin to G. II. McKnight, and Levin “Smith * * were mátele in ignorance of their rights in the pr.em-,lises — the said Cameron, Ludlow McNeely, George H. McKnight, and “John II. McKnight being well aware at the time that the land now “ in controversy belonged to petitioners by reason of their said purchase “ at the said succession sale ” etc.

The petition then alleges that the defendants have been and are now “ in possession of said lands in bad faith and without right.”

It further alleges, that the various parties above enumerated, are inter-related with each other, and with George IT. McKnight, the parish surveyor of Grant parish, and that they all “ conspired together for the “ purpose of claiming the two hundred acres of land and improvements “now sued for, without (possessing) any right, title, or just claim “ thereto, and to defeat the just and lawful claims of petitioners.”

It further alleges “ that the said parties last named well knew that “ they had no title to said land, and they should not be allowed to profit “by any presumed acknowledgment of recitals of the acts above re- “ cited, and which were made by petitioners in error and in ignorance of “ their rights in the premises; nor to have any advantage growing out “of the lapse of time or otherwise,” etc.

On the exception of the defendant as to a misjoinder of parties defendant, the minor Ross Bailey McNeely was made a party by citation to his natural tutrix; and, also, J. H. McNeely in his capacity of executor of L. McNeely, deceased.

The answer of all the defendants making common cause, is prefaced by a plea of estoppel against the claims of the plaintiffs, based upon the following grounds, viz:

(1) That on or about the 1st of October, 1884, at the instance of R. S. Oameron and IT. G. Goodwin, the surveyor of Grant parish “ in order “to re-establish the line running in an eastern and western direction “ through what is known as the Louis Charles DeBlanc Spanish Grant-, “ and which divided that portion of the said Spanish grant then owned “ by L. H. McNeely and R. S. Cameron from that portion then owned “by Goodwin and Goodwin (plaintiffs herein) and R. S. Cameron, “made a survey thereof and established, or run out said line, as will “ appear by his map and certificate thereof.” “That the said line sep- “ araling the grant into parts as above designated, was well understood “ by said TI. G. Goodwin, who participated in said survey and marking “ of corners thereof, as shown by said map,” etc.

(2) That on the 15th of December, 1889, in an act of exchange between Mrs. E. McKnight and the plaintiffs, passed before a notary, they recognized the aforesaid line, and thus ratified the same.

(3) That on the 30th of December, 1889, A. A. Goodwin, one of the plaintiffs, in an authentic act of sale to G. H. McKnight, again recognized said line and ratified the aforesaid division.

(4) That on or about the 12th of January, 1883, the plaintiff, H. G. Goodwin, under appointment of the court, “acted as an expert in cer- “ tain partition proceedings between R. S. Cameron and L. McNeely “ and Mrs. M. M. Ada Lane, being in suit No.-, R. S. Cameron et " al. vs. Mrs. M. M. Ada Lane, and Husband d al.j and that in said “proceedings, the said line is recognized, whereby said Goodwin be- “ came well aware of the said line of division.”

In their answer,, the defendants substantially state, that it is not true, as plaintiffs allege, that they 'own any part of said land; and, admitting the kinship alleged to exist between the parties named, they deny the charges made of collusion, fraud and false representations between the defendants or any of the parties named.

The defendants deny that they owe any rent, being possessors in good faith; and they plead the prescription of three years against the plaintiffs’ demand for same.

They further plead, in bar of plaintiffs’ suit and demands, and in support of their own titles, the prescription of ten and thirty years.

They, also, make claim for improvements to the value of fifteen hundred dollars, in case of eviction.

They pray that the plaintiffs’ demands be rejected, and that H. II. McNeely be recognized and decreed the owner of two-thirds, and Ross Bailey McNeely of one-third of the property in dispute, and to be quieted in their possession.

The following extract from the brief of the defendants’ counsel will materially aid in disclosing the chain of title under which they claim ownership of the land as having been derived from William Smith, who acquired same in 1836 from Apollonair Baillio, viz:

“ That Appolonair Baillio sold the said land together with other “ lands to William Smith in the year 1836; that William .Smith died “ about 1840, and the property passed to his grand-daughter, Mary “ Smith Taylor Calhoun, who was his sole heir. That the said Mary “ Smith Calhoun died about 1870, and the property passed to her sole “ heirs by inheritance, W. S. Calhoun and Mrs. M. M. Ada Calhoun “ Lane; that in the suit styled L. L. Levy vs. M. M. Ada Lane et al. “ and W. S. Calhoun, at 'sheriff's 'sale, R. S. Cameron and Ludlow Mc- “ Neely bought the undivided interest of W. S. Calhoun, as heir to the “ estate of his mother, Mary Smith Calhoun, which sale occurred on “Dec. 16, 1882; that in a partition suit between R. S. Cameron and “ Ludlow McNeely and the said Mrs. Lane, on the docket of your Hon- “ orable Court, the property in controversy fell to the share of R. S. “ Cameron and Ludlow. McNeely, plaintiffs therein, which partition was “ made in the year 1883; and in a conventional partition between the “ said Cameron and the said Ludlow McNeely made about December, “1887, the property in controversy fell to the share of Ludlow Me- “ Neely; and that the property passed from the said Ludlow McNeely, “who died in April, 1893, to J. II. McNeely, as universal legatee; but “ in the suit, M. L. McNeely, Tutrix, vs. J. H. McNeely, Executor, Ross “Bailey McNeely was decreed to be the forced heir of Ludlow Mc- “ Neely, deceased, and as such, entitled to an undivided one-third inter- “ est in his succession — thus giving him an undivided one-third interest “ in the land in controversy.”

The plaintiffs became the adjudieatees of certain property claimed to be that involved in this suit, at a probate sale made in the succession of Meredith Calhoun, on the 2nd of December, 1882, and a proces verbal was executed in conformity therewith, and same was duly recorded — it having been sold upon twelve months’ credit, and a twelve months’ bond executed by the purchasers.

At an execution sale made on December 16th, 1882, under a judgment in the suit of L. L. Levy vs. M. M. Ada Lane and Wm. S. Calhoun, the undivided one-half interest of the last named defendant in several plantations, was adjudicated to R. S. Cameron and Ludlow Mc-Neely, as the interest of said defendant, W. S. Calhoun, as an heir of the estate of Mary Smith Calhoun, the deceased wife of Meredith Calhoun, deceased — the deceased Mary Smith Calhoun having been the sole heir of her pre-deceased father, Judge William Smith.

It is upon these two adjudications that the respective pretensions of the plaintiffs and the defendants are founded — the plaintiffs claiming under Meredith Calhoun, the husband, and the defendants claiming under Mary Smith Calhoun, the wife.

Both of these adjudications are of contemporaneous dates — that of Cameron and McNeely only being two weeks later in date than that to plaintiffs.

The process verbal of sale to plaintiffs purported to convey “all the “interest of Meredith Calhoun in and to that portion of the Louis “ Charles DeBlanc Spanish claim lying in Grant parish, or Spanish “ section 18, in township 6, of range 3, west.”

The proces verbal of the sheriff’s adjudication to Cameron and McNeely purported to convey the interest of Wm. S. Calhoun in the Smithfield and Mirabeau plantations — Ihe two having a continuous front on Bed river of six miles — and the Ferenzie plantation immediately in the rear of the former, and the Meredith plantation in the rear of the latter; and, also, the uncleared lands adjoining same in the rear.

The theory of the defendants is, that Appolinair Baillio sold these lands to Judge William Smith in 1836, and that at his death in 1840, same were inherited by his granddaughter- Mary Smith, who was the wife of Meredith Calhoun.

That at her death in 1810, same were inherited by M. M. A. Lane and William S. Calhoun jointly as her sole heirs; and that Cameron and McNeely purchased the undivided half interest of Win. S. Calhoun and subsequently acquired the half interest of Mrs'. Lane in a judicial partition, in 1883.

The solution of the question of title depends, therefore, upon whether the property in dispute was owned by Meredith Calhoun, or by Mary Smith Calhoun, his wife.

From one of the maps that are in evidence it appears, that the division line designated as Y. X. Y. Z. made by the parish surveyor, extends diagonally across Spanish section eighteen (18) from northeast to southwest.

Another map which was made by the Surveyor General of Louisiana, on April 30th, 1849- shows that the entire Louis Charles DeBlanc claim, as it was made under an order of survey, on May 30th, 1811, extends across Bed river in a direction a little north of east; and that the portion south and west of the river contains 1354 acres while that portion north and east of the river contains only 574 acres.

The description of the latter portion — and with a part of which only we have to deal — as indicated on the last named map, is as follows, viz:

“See. 18, L. C. DeBlane, 574.04 acres,” etc.

The defendants seem to concede to the plaintiffs the ownership of the two hundred and seventy-four (274) acres on the side next to Red river, and hence this controversy relates exclusively to the two hundred (200) acres on the east side — the two portions being divided by the line Y. Y. X. Z.

Having thus outlined the respeótive contentions of the parties''and defined clearly the locus in quo, we will take up the issues involved and dispose of them.

The defendants’ pleas of estoppel and prescription must be first considered and determined, for if they, or either of them, should be sustained, this court will, in all likelihood, be relieved from prosecuting an inquiry into the cause upon its merits.

And, inasmuch as the pleas of ten and thirty years prescription are urged as muniments of the defendants’ title, we take them to be of an importance ranking that of the pleas of estoppel and will dispose of them first.

The statement of defendants’ answer, in so far as it relates to the prescription of ten years,.may be briefly stated as follows, to-wit:

That, at the date of his purchase in 1836, Judge William Smith entered into actual possession and occupancy of the aforesaid plantations including the lands in controversy, and retained the same to the time of his death in 1840; and that his successors in title held like possession as owners ever since, openly, publicly, continuously and uninterruptedly, until the date this suit was brought, June 15th, 1897.

That the property in controversy is in a cleared field, and in actual cultivation, and has been for more than thirty years.

That they have enjoyed quiet, peaceable and .uninterrupted possession under titles that are translative of property, and in legal good faith, for a period of more than ten years prior to the institution of this suit; and thereupon they plead the prescription of ten years as a muniment of title to the property in dispute.

The evidence shows that R. S. Cameron and Ludlow McNeely aequired an undivided one-half interest in the Smithfield and Mirabeau plantations fronting on. Eed river, and the Eerenzie and Meredith plantations situated immediately in their rear, without any description in the proces verbal of sale, of the land in suit; yet plaintiffs’ counsel admits in (his brief, that the contention of the defendants is, that it is embraced in and forms a part of the Mirabeau plantation, and that, as such, they acquired same at that sale.

Counsel of plaintiffs makes the further admission in his brief “that “ the description in the act of partition (of January 12th, 1883,) between “Mrs. Lane, and Cameron and McNeely under which the defendants “ are now claiming, is as follows, viz: Two hundred (200) acres in the “northeastern portion of section 18, known as the DeBlanc Spanish “ grant, as shown by the map filed therewith.”

Upon comparison made between the aforesaid description, and the allegations of the plaintiffs’ petition, and the recitals of llie adjudication to them at probate sale on December 2nd, 1882, it appears that the two are almost identical.

Hence, the act of partition of January 12th, 1883, became completely identified with the proces verbal of adjudication to Cameron and McNeely of December 16th, 1882 — there being scarcely an interval of one month between them.

As a further evidence of this identity, the fact may be cited that H. G. Goodwin, one of the plaintiffs, as an expert designated by the court, signed that act of partition.

A like description is contained in the act of voluntary partition of December 5th, 1887, between Ludlow McNeely and E. S. Cameron, whereby said land fell to the share of the former.

Hence, there is no question of the fact, that the title of Cameron and McNeely calls for the land in dispute.

E. S. Cameron, being shown the map X. in evidence, states that tho survey indicated thereby, was made by the parish surveyor, on the 1st of December, 1884 — that is to say, a few moments subsequent to the partition — at the mutual request of H. G. Goodwin, one of the plaintiffs, and himself, “in order to locate and establish the boundary line between land belonging to Ludlow McNeely and (himself) on the one part, and the lands belonging to Goodwin and Goodwin and (himself) on the other iwrt;” and he indicated upon the map the line Y. X. Y. Z. that is recognized by the judgment of the court a qua.

That H. G. Goodwin was present and participated in making the survey, and at that time knew of the existence of that map.

That at the time “there was not any difficulty or dispute about the boundary line;” but that the “survey was made for the purpose of avoiding any dispute, or misunderstanding as to where that line is. * * * Everybody concerned therein was perfectly satisfied with the line so far as he knew. There was no dispute about the boundary. It was surveyed in order that they might know where 'the line was on the ground.”

He states further that “the line Y. X. Y. Z. is a part of the boundary, of the southern boundary, of the estate that was partitioned,” in January, 1883.

That the H. G. Goodwin who participated in making the said survey, as the same H. G. Goodwin who acted as an expert in making said partition.

That for several years after the date of the purchase of the plaintiffs at Meredith Calhoun’s succession sale on December 2nd, 1882, of a portion of the DeBlanc Spanish grant, he (witness) managed their land for them; that is, during the years 1883, 1884 and 1885 — having charge of their property and collecting rents for them.

That he was in charge of the property of Cameron and McNeely for several years, and until the partition between them was effected in December, 1887.

That the part of the land which was bought by the plaintiffs, was sold to them on twelve months’ credit, and they sold him an undivided one-third interest therein before making any payment thereon; that he undertook the management of the property and the payment of the bond. That H. G. Goodwin and he, together, paid the purchase price when it fell due, which was about $1,026.00.

“That A. H. Goodwin did not pay a cent on the land, but he and “ H. G. Goodwin paid the whole 'of it out of the rents, etc.”

J. H. MoKnight, as a witness, says, he is the parish surveyor who established the line Y. X. Y. Z. and that same is identical with the line of division which is described by several old colored men who belonged to Judge William Smith in his lifetime, as being indicated by a fence that had existed for a great many years as the limit of his possessions.

That some of the witnesses had pointed out to him the place where the fence once stood, and he pointed out the same place on the map X. and stated that the land east and north of that line was in cultivation at the time of the survey.

E. S. Cameron testifies that he and Ludlow McNeely jointly owned the lands in controversy' — -the same that are described by McKnight — ■ at one time, and that they peaceably occupied and held undisturbed possession of same in the capacity of owners; and that their predecessors in title had always theretofore held like peaceable and undisturbed possession of same from the dates when the patents issued to the date of their occupancy. States that he had known the propeity for more than twenty years prior to the partition in January, 1883, and that, during that period of time the heirs of William Smith had possession thereof. ,

That at the date of the sheriff’s adjudication to Cameron and McNeely, on December 16th, 1882, Wm. S. Calhoun was in possession thereof as the heir of his mother, Mary Smith Calhoun.

Other witnesses state that the land' in dispute had been handled and controlled by Ludlow McNeely and E. S. Cameron ever since they purchased in 1882; and that same has continuously remained in the control and under the management of Cameron and McNeely to the present time — and of their successors in title.

J. IT. McNeely makes a similar statement and describes, in a circumstantial manner, the character and quality of the improvements that have been constructed and erected upon the property during the period of the defendant’s possession under their titles.

H. G. Goodwin testifies, that at the time he acted as an expert in making the partition of January, 1883, he did not know that any portion of the DeBlanc Spanish grant was, in any way, involved therein.

That upon his subsequently being so informed, he and his brother went to see Cameron about it for -the purpose of ascertaining the particular land that he and Ludlow McNeely claimed, lie then states that plat X. explains the whole matter. That Mr. Cameron always insisted “that he had a title to the Louis Charles DeBlanc claim; to that portion “ of the northeastern part of the section in dispute. That Cameron told “ him that he would get his patent and prove it to us (plaintiff) — show “ us where it was and why he claimed it.”

This is a fair analysis of the testimony in regard to the actual occupancy and possession of the land in controversy by Cameron and McNeely, and their successors in title since the 16th of December, 1882, as owners, under titles translative of property. The testimony which is related herein is entirely uncontradicted and undisputed. The statement of the plaintiff IT. G. Goodwin is an admission of full knowledge of the claim of Cameron and McNeely, and of their entire good faith in all these transactions.

The participation of II. G. Goodwin in the partition between Cameron and McNeely on the one part, and Mrs. Lane on the other part, in which the land in dispute was accurately described, and within a few weeks subsequent to the purchase made by his brother and himself, has particular significance in view of his statement under oath, that he had always known that Cameron had insisted that he had a title to the portion of the Louis Charles DeBlane Spanish grant in suit.

The evidence has fully developed that plaintiffs have occupied, for more than fifteen years, the portion of said grant which adjoins that in controversy, and used and cultivated it as their own; and that the defendants and their vendors have, during the same period of time, used, occupied and cultivated the land in dispute without question or objection on the part of the plaintiffs, until this suit was filed.

It is, therefore, manifest that the plaintiffs’ right of action for the recovery of same is barred by the prescription of ten years and that they cannot now be heard in a court of justice to gainsay or dispute the validity of defendants’ title.

In our opinion, the proof established the actual possession of the defendants as owners in good faith, under titles translative of property, and for more than ten consecutive years prior to the institution of this suit. It further shows, that their possession commenced in good faith, as it appears that, at the date of the sheriff’s adjudication to Cameron and McNeely, on December 16th, 1882, the property adjudicated was in the actual possession of William Smith Calhoun as an heir of his mother, Mary Smith Calhoun; and that it had been, theretofore, in the actual possession of his ancestors for many years previous.

Entertaining this view of the defendants’ plea of prescription, it must be sustained and enforced as a muniment of title; and it will, therefore, be unnecessary to consider the defendants’ plea of estoppel. We will, consequently, pretermit any discussion of the merits of the controversy.

In reaching this conclusion, we think it proper to observe that the plaintiffs’ charges of fraud, collusion and conspiracy on the part of the defendants and their vendors, were not sustained by proof.

Whilst we have found no occasion to examine and pass upon the question of title, as the judge a quo did, we think the maintenance of the defendants’ plea of ten years’ prescription as a muniment of title, is equivalent to an affirmance of his judgment.

Judgment affirmed.

This case having been submitted previous to the date of his appointment, Mr. Justice Monroe takes no part in this decision.

Eehearing refused.