author: LECHE, J. ELLIOTT, J. LECHE, J.

text:
    No. -
    First Circuit
    WILLIAMS CYPRESS CO., LTD. v. DUGAS ET AL.
    (June 28, 1927. Opinion and Decree.)
    (December 6, 1927. Rehearing Refused.)
    (January 18, 1928. Writ of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Appeal—Par. 320, 326; Pleading — Par. 6, 39.
    The general allegation that plaintiff had failed'to comply with Article 276 of the Code of Practice is not equivalent to the notice required by Section 3 of Act No. 112 of 1916 on motion to dismiss that plaintiff had failed to furnish sufficient or proper bond.
    2. Louisiana Digest — Prescription—Par. 18, 20.
    Possession as lawful owner of land under title which did not except the trees thereon, although the trees had been previously decreed to another as movables before the passing of Act No. 188 of 1904, gives the owner of the land title to the trees under both Civil Code Articles 3506 and 3509, providing three and ten years prescription governing movables, after ten years undisputed possesion thereof..
    ON REHEARING
    3. Louisiana Digest — Prescription—Par. 18, 20; Things — Par. 5.
    Standing trees sold separately became mobilized under the law in effect before the passage of Act No. 188 of 1904, which act made them” immovable regardless of separate ownership. The trees sold before 1904 to separate owner remain movable after 1904 subject to the prescription applicable to movable property.
    Appeal from the Parish of Assumption. Hon. Samuel A. LeBlanc, Judge.
    Action by F. B. Williams Cypress Co., Ltd., against Henry Dugas et al.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Charles T. Wortham, of Donaldsonville, attorney for plaintiff, appellant.
    Gilbert & Gianelloni, of Napoleonville, attorneys for defendant, appellee.
    Elliot, J., dissents for written reasons.
   LECHE, J.

Plaintiff claims the ownership of certain timber and caused it to be sequestered. The timber is situated on lands belonging to the widow and heirs of Louis Gros, who, believing themselves to be owners thereof, sold it to the defendants on April 6, 1926. Defendants moved to dismiss the sequestration on the general ground that plaintiff had failed to comply with Article 276 of the Code of Practice. Plaintiff had furnished a bond to obtain the writ of sequestration, but failed to write in the body of the bond, the amount thereof, viz: One thousand dollars, and the name of the surety, Emile Sundberry. The motion to dissolve is aimed at these omissions.

Under Act 112, p. 241, of 1916, bonds in judicial proceedings, including this class of bonds, provides the manner in which errors, inaccuracies and omissions may be corrected. According to the terms of the Act, it appears that plaintiff could have corrected the omission in the bond at any time before judgment, provided that if defendants had, under Section 3 of the Act, caused a notice to be served upon plaintiff through the proper officer, claiming insufficiency of the bond in form of substance, the plaintiff would then only have had two legal days tq make the correction or furnish a new bond.

More than two days elapsed before the correction was made in this case, and the question then arises whether the motion to dissolve, service of which was accepted September 2, 1926, is a sufficient compliance with the notice required by the Act of 1916.

The general allegation that plaintiff had failed to comply with Article 276, C. P., is not equivalent to a notice that plaintiff had failed to furnish a sufficient or proper bond. (Succession of Theriot, 114 La. 612; 38 South. 471.) Plaintiff did correct or furnish a new and proper bond before judgment. It was not, according to the terms of the statute, required to furnish such new bond within two days of the filing of the motion to dismiss, because that motion did not specifically advise it of the defect in the bond and thereby give it the opportunity to make the correction. The interlocutory judgment dissolving the sequestration upon that ground, is erroneous; the motion should have been overruled, and that judgment is therefore reversed.

On the merits of plaintiff’s demand, it appears that plaintiff’s author in title, and J. O. Delaune were, by a judgment of the District Court for the Parish of Assumption Where the property is situated, recognized, the former as owner of all the trees, with the exception of ten standing cypress trees, situated on the W. half of lot 3, in Sec. 25, T. 14, S. R. 13 E., and the latter, J. O. Delaune, as owner of the land, together with all the buildings and improvements and ten standing cypress trees thereon. The judgment was rendered December 10, 1900, or previous thereto.

Oh March 1, 1901, Delaune sold the land to Barilleaux and in that sale the trees are excepted. Barilleaux in two acts of sale, of date October 5, 1903, and January 13, 1906, sold the same land to Louis Gros. In neither of these sales was there any exception or reservation made of the trees. Louis Gros subsequently died and his legal heirs, on April 6, 1926, sold all the cypress, túpelo and sweet gum trees on the land to the defendants.

Shortly after acquiring this title, the defendants began to fell and haul the trees; plaintiff then filed the present suit and coupled therewith a writ of sequestration.

The main defense is the plea of precription of ten years.

The property in contest in the case consists of trees. These trees were mobilized by the judgment of the District Court rendered in 1900, for that judgment recognized the ownership of the land in one person and the ownership of the trees in another person. The Act No. 188, p. 420, of 1904, did not change the status of these trees, for it provides that “standing timber shall remain an immovable * * * even when separated in ownership from the land on which it stands * * * .” The word “remain” makes it clear that where timber had previously been mobilized, it could not remain an immovable, because at the time the Act was adopted, it was not an immovable. It could not remain in a situation which it did not previously occupy. The terms of the Act and the previous jurisprudence both show that before the Act of 1904, where the ownership of the standing timber and of the land upon which it was situated, was in different persons, the standing timber was a movable. The language of the statute clearly applies in futuro and is not retrospective.

If the trees in this case are movables, then registry' of the judgment of 1900, so far as that judgment decreed the title of the trees to be in plaintiff, could not serve as notice to innocent purchasers. The purchaser of a movable is not bound to look up the conveyance records to inquire into the title of his vendor. So that registry of plaintiff’s title to the trees in the Conveyance records of Assumption was in no manner binding upon third persons.

The evidence shows that as soon as Louis Gros purchased the land upon which the trees were standing in 1903 and 1906, he went into possession both of the land and the trees; that he cut some trees, sold others on several occasions, and that he never suspected that any one else claimed title thereto. There is no evidence that plaintiff ever took actual corporeal possession of these trees, or ■ ever exercised any act manifesting its control over or ownership of the trees.

The possession of plaintiff was the civil possession that flowed from the Court decree rendered in 1900, while the possession of Louis Gros was actual and corporeal from the year 1906 to the year 1926, when his heirs sold to the defendants. During these twenty years, Louis Gros as lawful owner of the land under a title which did not except the trees, and which presumably included them as an accessory to the land to which they were attached, acquired an absolute title thereto both under the prescription of three years, C. C. 3506, and the prescription of ten years, C. C. 3509 As owners of these trees under a prescriptive title, the heirs of Louis Gros made a valid and sufficient title to the defendants. Our learned brother of the District Court so fpund; his judgment is correct and should be affirmed and for the reasons stated it is so ordered.

DISSENTING OPINION OF

ELLIOTT, J.

The judgment in the suit of J. O. Delaune vs. F. B. Williams in the District Court of he Parish of Assumption, rendered December 10th, 1900, recognizes Williams as the owner of the timber in question and Deaune as the owner of the land. This Court holds that the effect of the judgment was to mobilize this timber. No authorities are cited in support of this conclusion, but I assume that the holding was influenced by the cases Citizens Bank vs. Wiltz, 31 La. Ann. 244; Lumber Co. vs. Sheriff, 106 La. 414, 30 South. 902; and Huie, Hodge Lumber Co. vs. Smith, 123 La. 959, 49 South. 655, and the French authorities therein cited, according to which, standing timber under the Code of Napoleon was mobilized when sold for the purpose of being cut down and removed from the land. The above cases are based on the theory that the provisions of the Civil Code of this state, Act 188 of 1904, not taken into account, and those of the Code of Napoleon on the subject of standing timber, are substantially the same; consequently should be applied in the same way. But I do not think them the same. I find them to be different to the extent, that it .seems to me the same application is erroneous and that as a result the cases cited are not governing as to the case in hand.

In Citizens Bank vs. Wiltz a crop was seized in the enforcement of a privilege. A contest ensued as to what was subject to eizure and sale separate and apart from the land. The Court held that part of the crop could be seized and sold, but that seed cane or corn necessary for production, could not; quoting a French Commentator on the Code of Napoleon, the text of which is to hd-feffect that in the case even of perfect and perpetual inherence to the soil, predicts are movable in a certain case. Thus When grain, fruits or wood are sold sepaately from the soil, it is a sale of movables and the purchaser has only a movable right. These objects in consequence are only sold like products, like things distinct from the soil, and so far ought to be separated from it. In reality they are immovables; but they are sold like movables; the purchaser buying the things yet immovable, but under the condition and with the power to mobilize them. The opinion also states that the provisions of our Code are identical with Article 520 of the Code of Napoleon.

Smith vs. Huie-Hodge Lumber Co. was a suit to set aside a sale of standing timber for lesion beyond moiety. In that ease the Court said, p. 963, that the French writers construing Article 1674 of the Code of Napoleon, which was very much like Article 2589 of the Code of this State, hold that when standing timber is sold in order to be separated from the soil, it is a sale of movable property and not subject to attack on account of lesion. The Court citing authorities bearing on the Code of Napoleon adds:

“And we should be disposed to adopt that view, were it not that in addition to the provisions of the Civil Code, which we have mentioned, we are confronted with Act 188 of 1904.”

In Lumber Co. vs. Sheriff the case 106 La. 414, 30 South. 902, was approvingly cited; but the opinion also contains expressions to the effect that trees after being sold remain under our law, immovable until they are cut down.

The provisions of Article 465 of the Civil Code of this state and Article 520 of the Code of Napoleon are similar as to growing crops and fruit on trees and admit of the same application because the nature of crops and fruit is the same; but Articles 520 and 521 of the Code of Napoleon contain no provision equivalent to that contained in Article 465 of the Civil Code of this state, according to which standing timber is immovable and considered part of the land to which it is attached, until it has been cut down.

Article 521 of the Code of Napoleon reads: “The cuttings of underwood of the ordinary kind or forest trees made up in regular faggots, only become movable in roportion as they are felled.” The cuttings of underwood of the ordinary kind as commonly understood in this country, means timber growths under the size of trees, which grow under the trees and are ordinarily cut out for firewood. “Forest trees made up in regular faggots,” evidently refers to trees that have been sold and are not tq remain standing, except temporarily, but are to be soon removed like a growing crop. The situation contemplated by the Code of Napoleon is different from that established by our Code, according to which: Standings trees — before they are cut down, are immovable, and are considered as part of the land to which they are attached. As soon — as the trees are cut down — they are movables.

Our Code on this subject is so plain that it is not open to construction, C. C. Article 13, etc. The Code of Napoleon evidently has in mind, trees, that have been sold for the purpose of being soon removed like a growing crop, fruits on trees. Our Code makes growing crops, fruits on trees and standing timber all immovable alike and part of the land to which they are attached.

But a growing crop and fruits on a tree are mobilized when gathered; while the nobilization of standing trees does not take place until they are cut down. Under our Code, a growing crop and fruit on a tree, if sold, must, as a necessary consequence, due to their perishable nature, be soon removed from the land to which they are attached, otherwise they are lost; but it is not contemplated that standing timber, if sold, must, as a necessary consequence, be soon cut down.

Leaving Act 188 of 1904 out of mind, the language of our Code on the subject indicates that such was not intended.

The compilers of our Code were familiar with the provisions of the Code of Napoleon on this subject in 1825 and purposely incorporated in our Code the present provision on the subject. The vast bodies of standing timber in this state at that time was a situation no doubt taken into account. The provisions of our Code on this subject are in conformity with the laws of the other States. Ruling Case Law, Vol. 17; Subject: Logs and Timber; Sections 4 and 5, p. 1068, and Sections 8 and 10, ip. 1076.

The situation in the present case is also different from that contemplated by the Code of Napoleon and the French Commentators so far as I have been able to ascertain; also from the decisions Citizens Bank vs. Wiltz, 31 La. Ann. 244; Lumber Co. vs. Sheriff, 106 La. 414, 30 South. 902; Huie, Hodge Lumber Co. vs. Smith, 123 La. 959, 49 South. 655, in this: the Code of Napoleon deals with trees that have been sold for the purpose of being soon removed from the land, and in the cases cited, the trees had been sold for the purpose of being cut down. Delaune did not own these trees; he did not sell them to Williams. The judgment which recognized Williams as the owner of the trees and Delaune as the owner of the land, is silent on the subject of severance or partition.

Possession is naturally linked, with the ownership. Civil Code Articles 3434 and 3435. The possession of the trees was therefore naturally in Williams, and that of the land in Delaune. The standing trees being, as a matter of law, considered as part of the land, and the judgment being silent on the subject of severance, it followed that Williams and Delaune were content for the timber to remain on the land, each owning and holding a separate part of an immovable in indivisión.

It is, therefore, my conclusion, that these trees were not mobilized as a result of the judgment rendered, and as held by a majority of the Court herein. The conclusion of the Court that such took place is not in my opinion supported by any applicable authority and is erroneous.

Under the judgment rendered on December 10th, 1900, Williams and Delaune were joint owners of an immovable; Williams owning the timber and Delaune the land, and this joint ownership continued between them and their respective successors in title and will remain, until a severance takes place either as the result of an agreement between the co-owners or of a judgment of the court between them fixing a time when the timber must be removed from the land.

Kavanaugh vs. Frost-Johnson Lumber Co., 149 La. 972, p. 975, 90 South. 275, and other cases to the same effect.

The opinion of the Court herein assumes that these trees were included in the sales from Barilleaux to Louis Gros as an accessory of the land. I differ with them as to that matter. These trees are not called for in any of the titles emanating from Delaune. Being part of an immovable recognized as belonging to Williams which judgment was recorded on or about the time it was rendered in the conveyance books of the Parish of Assumption, it was íecessary, in order for them to have been included in the sale to have been expressly mentioned in the acts of sale as objects sold. The object of every contract must be definite. Civil Code Articles 1779, 2438, 2474.

On this subject, Gray vs. Edgar Lumber Co., 138 La. 906, 70 South. 877, is a parallel case. In that case the owner of land sold the standing timber thereon and the purchaser recorded his title in the conveyance book. The owner of the land then after-wards sold it without reserving the trees and making no mention of them in the act. The purchaser of the land set up a title to the trees, claiming possession of them, and that they passed to him under his title.

The Court in deciding the case stated that it might well be doubted that George Walker ever intended to sell the timber to the plaintiff; but if such was his intention, the transfer was null as a sale of property belonging to another. On the question of possession the second clause of the syllabus reads as follows:

“Where such a sale was duly recorded and the vendee thereafter sold the same land without reservation to a third person, and the purchaser took actual possession of a small clearing on the tract; held, that such possession did not carry with it possession of the standing timber previously sold to defendant.”

Another result of the joint ownership of Williams and Delaune and their respective successors in title is that a public possession can not be commenced by either side, as to the property belonging to the other until either have taken hostile possession of the other’s property in such a way as to notify him of the fact. Otherwise, joint ownership remains and continues indefinitely until a severance takes place either as the result of the consent of the joint owners, or by virtue of a judgment between them ordering a severance and fixing a time for it to be accomplished.

Kavanaugh vs. Frost-Johnson Lumber Co., 149 La. 972, 90 South. 275; Liles vs. Pitts, 145 La. 650, 82 South. 735; Simon vs. Richard, 42 La. Ann. 842, 8 South. 629; Litton vs. Litton, 36 La. Ann. 348.

On the question of ownership in Louis Gros and his widow and heirs, the Court cites Civil Code Article 3506, which provides a prescription of 3 years, and Article 3509, which provides one of 10 years for movables, holding as I read the opinion that Louis Gros and his widow and heirs had become owners of the standing timber in that way.

These prescriptions are not pleaded by defendants.

“Courts can not supply the plea of prescription.” C. C. Art. 3463.

Defendants plead a just title to the timber and the prescription of ten years under Civil Code Art. 3478 — in support of their alleged title under which immovables are prescribed for against the true owner in ten years. The Court does not act on this plea, but applies against the rights of the plaintiff, the prescriptions applicable to movables which were not pleaded.

I do not think that should have been done.

Joint owners do not possess nor prescribe gainst each other under certain conditions; but suppose Louis Gros, and after him his widow and heirs, and the plaintiff, were not joint owners nor possessors, all that Louis Gros, and after him his widow and heirs, claim to have done, was to cut small trees and cord wood from the land as they saw proper, without reference or notice to plaintiff.

Under the settled jurisprudence of this State, such acts do not amount to a commencement and maintenance of actual possession of an immovable not called for by the title of the party.

Prevost Heirs vs. Johnson, 9 M. 123; McCarty vs. Foucher, 12 M. 17; Gardner vs. Leger, 5 La. Ann. 594; are among the earliest, and South Land Co. vs. Riggs Cypress Co., 119 La. 193, 43 South. 1003; Frederick vs. Goodbee, 120 La. 783, 45 South. 606; Albert Hanson Lumber Co. vs. Baldwin Lumber Co., 126 La. 399, 52 South. 537; and Howell vs. Metropolitan Land Co., 127 La. 399, 53 South. 664, are among the latest decisions to the effect that such acts do not amount to a commencement and maintenance of actual possession of land not called for by the title .of the party.

I, therefore, dissent from the opinion and decree of this Court herein, and contend that the judgment appealed from is erroneous and should be annulled, avoided and set aside and judgment rendered in favor of the plaintiff as prayed for.

ON REHEARING

LECHE, J.

Plaintiff complains that we have erred in holding that the standing trees in suit became mobilized when it acquired the same as a distinct and separate estate. Plaintiff did not own and does not claim ever to have owned the soil to which the trees were attached, the title to the soil being then in the author of defendants. It has always been our conception of the law that when the owner of the soil or the immovable, sells any of its accessories, the accessories when sold .become mobilized in anticipation by their change of ownership; that in order to form part of the realty or of the immovable, the attached accessories must also belong to the owner of the immovable; that one who owns crops or trees on the land of another only owns a movable. In fact that is so 'true, that the Legislature in order to impress the character of immovability upon standing trees after the trees had gone out of the ownership of the owner of the land, found it necessary to pass the Act No. 188, p. 420, of 1904, and no other reason is conceivable for the adoption and passage of that act.

Baudry-Lacantinerie in his “Precis de Droit Civil,” Yol. 1, Art. 1421, commenting on Article C. N. 520, which corresponds to Article 465 of our Code, says in substance, that the fruits attached to the soil are considered movables when sold separately from the soil. In fact, he says that the right of the purchaser of a crop or of standing timber, as that of a lessee, does not apply to the immovable, but only to the product of the soil, something distinct from the immovable to which it adheres. The purchaser only buys a movable.

Such, in. fact, has always been considered the law in this State, until the adoption of Act 188 of 1904. In the cases of the Globe Lumber Company vs. Keete Locket, 106 La. 414, 30 South. 902, and Citizens Bank vs. Wiltz, 31 La. Ann. 245, the Supreme Court recognized that the alienation of a crop or of timber by the owner of the land on which it was grown had the effect of mobilizing the crop or the timber.

That the purpose of the Legislature in adopting the Act of 1904 was to change and not to recognize the law, as it previously existed, is evident from the decisions of the Supreme Court in Lee Lumber Company vs. Hotard, 122 La. at page 856, 48 South. 286, Hyde vs. Barron, 125 La. 227, 51 South. 126, Morgan vs. O’Bannon & Julien, 125 La. 367, 51 South. 293.

Plaintiff cites in support of his contention of error on our part, Lange vs. Baranco, 32 La. Ann. 607. That case involved the possession of a public franchise in the city of New Orleans A building was erected on public ground for the purpose of therein conducting a public market, the building to become city property after a certain time, the builder to be reimbursed by market fees which he was authorized to collect in conducting the market. The property right at issue was not the ownership or possession of the building, but the right to enjoy the franchise. The authority cited in that decision for its support, New Orleans Nat. Bank vs. Raymond, 29 La. Ann. 355, is in reality in accordance with the law as construed by us in the present case.

The other grounds urged in support of the plaintiff’s .application for rehearing, are questions of fact which we still believe, were properly disposed of in the opinion heretofore rendered by us, as well as by the judgment of our learned brother of the District Court.

Rehearing refused.


source: Caselaw Access Project

author: CLAIBORNE, J.

license: Public Domain

text:
    No. 9944
    Orleans
    GIARRATANO v. ANGERMEIER
    (November 14, 1927. Opinion and Decree.)
    (December 12, 1927. Rehearing Refused.)
    (January 20, 1928. Writ of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Court)
    1. Louisiana Digest — Registry—Par. 7.
    All contracts affecting immovable property shall be recorded in order to affect third persons.
    2. Louisiana Digest — Registry—Par. 7.
    Knowledge is not equivalent to registry.
    3. Louisiana Digest — Registry—Par. 7, 8.
    The recordation must be made in the correct names of the parties to the contract.
    4. Louisiana Digest — Registry—Par. 7, 8.
    The registry of an act against “Callock” cannot affect property owned and registered in the name of “Colark”.
    5. Louisiana Digest — Servitude—Par. 6, 7, 8, 15.
    A servitude of passage can be acquired only by title; it cannot be acquired by destination de pere de famille It was, therefore, error to have heard testimony to establish it.
    6. Louisiana Digest — Prescription—Par. 225.
    Prescription cannot be pleaded in the Supreme Court unless the proof of it appears in the record.
    Appeal from Civil District Court. Hon. M. M. Boatner, Judge.
    Action by Joseph Giarratano against Mrs. Julia Angermeier.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed in part and reversed in part.
    Theo. Cotonio, of New Orleans, attorney for plaintiff, appellee.
    Curtis & Hall, of New Orleans, attorneys for defendant, appellant.
   CLAIBORNE, J.

The plaintiff herein claims a right of passage over defendant’s property. The facts are as follows:

By an act before H. Loomis, Jr., notary, dated November 22nd, 1923, recorded in the conveyance office, book 368, page 417, the Suburban Building and Loan Association sold to the defendant, Julia Angermeier, widow by first marriage of Bernard Graff, and wife by second marriage of William Gerchow, the following property:

“A certain lot of ground, situated in the Seventh District of this city in the square No. 194 bounded by Dublin, Carrollton Avenue, Jeannette and Birch streets, designated as lot B on a blue print made by E. L. Eustis, surveyor, dated August 30th, 1923, annexed to the act of purchase of the Suburban Building and Loan Association, which lot B measures 27 feet front on Dublin street by 130 feet deep and commences at a distance of 94 feet from the corner of Birch street; together with the improvements thereon designated by the Nos. 1525-27 Dublin street; being the same property purchased by the Association from Mrs. Charlotte Lapleau by act of Harry L. Loomis, Jr., dated November 22nd, 1923.”

Mrs. Lapleau purchased from Phoenix •Building Association by act of Robert E. O’Connor dated December 16th, 1921, Reg. C. O. Bk. 347, p. 181.

Phoenix Building Association purchased from W. O. W. Cummings by act before Robert E. O’Connor dated December 16th, 1921.

Widow Cummings' purchased from Joseph “Colark” by act of W. Morgan Gurley, notary, dated December 18th, 1920, Reg. C. O. Bk. 330, p. 48.

Joseph Colark purchased from L. Jansen by act P. D. Charbonnet dated August 27th, 1919, Reg. C. O. Bk. 308, p. 447.

In all of the above acts mortgage and conveyance certificates are mentioned, especially in the act of sale of Joseph Colark to Widow Cummings, and in none does it appear that there is a servitude or right of passage in favor of any other lot or of any third person.

The plaintiff alleged that by act of Wm. R. Kerr, notary, dated September 16th, 1920, Reg. C. O. Bk. 327, p. 274, he purchased from Nancy Guifria Widow Louis Porpora the following property:

A certain lot of ground in the same square 194 above mentioned designated as lot “C” commencing at a distance of 150 feet from the corner of ■ Jeannette and measuring 30 feet front on Dublin by 130 feet deep.

Immediately after this description appears the following declaration:

“And to these presents personally came and appeared Mr. Joseph ‘Callock’ of full age and residing in this city and the said Joseph ‘Callock’ and the vendor herein, Mrs. Nancy Porpora, declared that whereas the former is’ the owner of lot B and the latter of lot C of said square 194, they hereby establish for the common use and the use of the present purchaser and of all future owners of lot B and C, the actual width of said alley and as at present constituted and in use by the parties to be ascertained by a sketch of survey to be annexed to this act for reference.”

At the bottom of the act are the words: His

“Joseph X Kalark, Registered in Con-Mark veyance Office Book 327, folio 274.”

It does not appear anywhere in the record whether this intervention of Joseph “Callock” was registered, nor in what name, whether “Callack” or “Collaek”. But the presumption is, if registered at all that it was registered in the name of “Cal-lock”, the appearer, inasmuch as the conveyance certificate in the ñamé of “Collaek” annexed to the act of W. Morgan Gurley is clear as well as the conveyance certificate dated May 30th, 1924, in the name of Joseph Colark filed in the transcript is clear, “except sale December 18th, 1920, to Mrs. W. Cummings, C. O. B. 330, folio 48”.

This intervention of “Joseph Callock” was in an act dated September 16th, 1920.

The sale of lot B made by “Colark” to Widow Cummings was dated December 18th, 1920. The certificate of conveyance annexed to this act was clear. Plaintiff claiming his right of passage and servitude by a prior title assumed the burden of proving that his title had been registered in the Conveyance Office, in the manner required by law.

He claims title, not from “Colark” but from “Callock”. We must presume that his title was registered in that name. This presumption is made certain by the clear conveyance certificates issued in the name of “Colark” by the Conveyance Office. Plaintiff has not shown that his title was registered in the name of Colark and that the conveyance certificate is not correct. The names of “Colark” and “Callock” are evidently different. Certainly different for the Conveyance Office where the researches are made from an index alphabetically arranged. In looking for the name “Callock” thé clerk would not run the letter “O”, nor the letter “A” in looking for ‘Colark’, nor would any third person searching for a sale.

The opinion in Agurs vs. Belcher, 111 La. 378, 35 So. 607, is not in point. In that case the right name Johnson appeared in the act of sale and in the registry. But the clerk erroneously indexed it in the name of Jones. But in the case under consideration there is a difference in the names of the vendors; and the names are properly registered and indexed according to the acts. Even if the defendant had examined the body of the registry books they would have seen “Callack” and not “Colark” as a vendor.

To decide in favor of plaintiff it would be necessary to hold that an alienation of property by Joseph “Callock” registered as such could affect property owned and registered in the name of Joseph “Col-lark” and sold by him. In the recent case of Impastato this court held that an inscription for paving against Walter P. “Connell” could not affect the rights of third persons upon property owned and registered in the name of Walter P. “Connole”. The test of the validity of the “Callock” inscription as against “Collark” is found in the question, could the register of conveyances have been held liable for failure to report an inscription against the latter in a certificate in the name of the former?

The plaintiff argues that the names of vendors and vendees are immaterial; that the law looks only to the property conveyed. This argument is refuted by Section 2430 R. S. and Art. 2259 C. C. reading as follows:

“In the Parish of Orleans, when the act of transfer of property shall have been passed before a notary public, it shall be sufficient that the registering of the act be made on a certificate being presented from the notary who shall have passed said act containing:
“First: The date of the act, and the place where it was {passed;
“Second: The names, surnames and qualities of the contracting parties;
“Third: The description of the immovable property which has been transferred with all necessary details;
“Fourth: The price of the transfer whether paid in ready money or on time, in the latter case what the terms and conditions are.”

It will thus be seen that the law makes as essential requisites of the registry, among other things, of names, surnames, and qualities of the contracting parties.

Upon that subject Judge Monroe said in Mouton vs. Southern Saw Mill, 138 La. 819, 70 So. 813:

“Is a proposed purchaser of property to search the records, not only for the name of his proposed vendor, but also for the property that he contemplates buying? If so, the law should require that all real estate, as well as the names of all vendors and vendees of real estate, should be indexed; otherwise one buying property of that kind would be obliged to devote a considerable part of his life to turning over the pages of the volumes containing the conveyance records.”

The plaintiff argues again that the defendant cannot plead want of registry of plaintiff’s title to the servitude because she was aware of it prior to the sale by reason of the following clause of her offer to puroihase:

“I offer and agree to purchase the property known as numbers 1525-27 Dublin street with all ground and improvements belonging thereto subject to a community alley right on 1527 side.”

The law of the case is contained in Article C. C. 2266. It reads as follows:

“All sales, contracts, and judgments affecting immovable property, which shall not be so recorded, shall be utterly null and void, except between the parties thereto. The recording may be made at any time, but Shall only affect third persons from the time of the recording.”

The law is clear and free from ambiguity and has been enforced in decisions too numerous to mention. The controverted question was whether “knowledge” was equivalent to registry. It was finally decided that it was not in McDuffic vs. Walker, 123 La. 152, 51 So. 100. Affirmed in Schneidau vs. N. O. Land Co., 132 La. 264, 61 So. 225; 6 Orl. App. 359; 12 Orl. App. 363; Baird vs. Atlas Oil Co., 146 La. 1099, 84 So. 366; Woodcock vs. Baldwin, 51 La. Ann. 989, 26 So. 46.

Upon the authority of those decisions we must decide that the clause in the offer to purchase was not equivalent to registry.

Plaintiff’s allegation that the servitude of passage claimed by him was established by a former owner of the two lots now owned by plaintiff and defendant lends no force to his case under the law. C. C. 766 (762) Continuous non-apparent servitudes, and discontinuous servitudes, whether apparent or not, can be established only by a title. “Art. 767 (763). The destination made by the owner is equivalent to title with respect to continuous apparent servitudes.”

C. C. 727 (723). “Discontinuous servitudes are such as need the act of man to be exercised. Such are the rights of passage, of drawing water, pasture, and the like.”

“A servitude of passage is not continuous, and can result under no circumstances from the destination de pere de famille, the former proprietor of the adjacent estates.” Fisk vs. Haber, 7 La. Ann. 652; Cleris vs. Tieman, 15 La. Ann. 316; Larcade vs. Iseringhausen, 153 La. 976, 96 So. 830; 9306 Orl. App.; C. N. 691, 692, 693; 8 Laurent, Nos. 172, 182; 12 Demolombe, p. 316, Sec. 815, 821, 822.

As the servitude of passage cannot be acquired by any other but a Written title and cannot result from a destination de pere de famille, it was error on the part of the trial judge to have heard any testimony to establish it.

In a supplemental petition the plaintiff prayed that the fence which had been removed by the defendant be reinstated in its former position. There was judgment against him on that point. The trial judge seems to have decided correctly as the fence was removed upon the lines separating the two properties according to a survey and sketch made by a surveyor. In this court the plaintiff has pleaded the prescription of ten years, alleging that the fence “had been erected for more than ten years prior to its removal”. The record contains no proof of that allegation. Therefore it cannot be considered by this court. C. C. 3465 (3428).

It is therefore ordered that the judgment appealed from in so far as it rejects the demand of the plaintiff for the moving of the fence as now existing be affirmed, and that in all other respects said judgment he reversed, annulled and set aside, and that plaintiff’s demands he rejected at his cost in both courts.

Judgment affirmed in part and reversed in part.


text:
    No. 11,071
    Orleans
    NORWICH UNION INDEMNITY CO. v. JUDLIN AND WHITMIRE
    (October 24, 1927. Opinion and Decree.)
    (December 5, 1927. Rehearing Refused.)
    (January 20, 1928. Writ of Certiorari and Review Denied by Supreme Court.)

      (Syllabus 6y the Editor)

    1. Louisiana Digest — Prescription — Par. 192, 193, 195, 203; Judgment — Par. 9.
    A citation addressed to and served on Peter Judlin, though not sufficient to base a judgment against Peter Judlin, i Inc., was sufficient to interrupt prescription against the latter.
    2. Louisiana Digest — Appeal—Par. 588.
    An appeal in a suit against Peter Judlin divested the court of jurisdiction ' of • the case against him but not against 1 Peter Judlin, Inc., which was not then - a party to the suit.
    ; Appeal from First City Court, Division “B”. Hon. V. J. Stentz, Judge.
    ^Action by Norwich Indemnity Co. against Peter Judlin and Wm. Whitmire.
    There was judgment for plaintiff and del fendant appealed.
    Judgment reversed.
    Eraste Vidrine, of New Orleans, attorney for plaintiff, appellee.
    Spearing & Mabry, of New Orleans, attorneys for defendant, appellant.
   REASONS FOR JUDGMENT

CLAIBORNE, J.

This suit was originally brought against Peter Judlin as owner of a certain truck.

He was served personally on April 20th, 1926.

He filed an answer denying the allegations in each paragraph of plaintiff’s petition.

•There was judgment against him.

j He appealed to this court under No. 10,802.

The judgment was reversed and judgment rendered in his favor on the ground that the truck belonged to Peter Judlin, Inc.

On April 8th, 1927, plaintiff filed a supplemental petition in the original suit asking for citation and judgment against Peter Judlin, Inc.

Peter Judlin, Inc., was cited on April 9th, 1927”, by service on “Peter Judlin Presdt”.

In the original suit, Peter Judlin had testified that he was president of Peter Judlin, Inc.

Peter Judlin, Inc., among other pleas pleaded the prescription of one year.

The tort' sued on was committed on December 3, 1925; the citation addressed to and served on Peter Judlin on April 20, 1926, though insufficient to base a judgment against Peter Judlin, Inc., was sufficient to interrupt prescription against the latter.

Campbell vs. Hart, 118 La. 494, 43 So. 533;

Babin vs. Lyons Lbr. Co., 132 La. 874, 61 So. 855.

The citation to Peter Judlin, Inc., was served upon the latter on April 9, 1927, less than a year since the service on Peter Judlin. Prescription had not accrued in favor of Peter Judlin, Inc. Plea of prescription is therefore overruled.

The appeal in this suit against Peter Judlin divested the court of jurisdiction of the suit against him but not against Peter Judlin, Inc., which was not then a party to the suit.

On the merits plaintiff is entitled to judgment.


text:
    No. 9663
    Orleans
    WILLIAMS-RICHARDSON CO., LTD., v. N. O. & N. E. R. R. CO.
    (March 28, 1927. Opinion and Decree.)
    (April 25, 1927. Rehearing Refused.)
    (July 11, 1927. Writ Supreme Court Granted.)
    (January 20, 1928. Opinion and Decree, of Supreme Court on Writ of Certiorari and Review; Affirmed.
    See 165 La. — 115 S. 358.)

      (Syllabus by the Court)

    1. Louisiana Digest — Carriers of Passengers and Goods — Par. 108, 111, 118.
    It is the duty of the carrier to deliver the goods to the consignee; and if an error is made in his name to make reasonable inquiry from consignor in an effort to correct it.
    Appeal from Civil District Court, Division “E”. Hon. W. H. Byrnes, Judge.
    Action by Williams-Richardson Co., Ltd., against N. O. & N. E. R. R. Co.
    There was judgment for plaintiff and defendant appealed
    Judgment affirmed.
    Miller, Miller & Fletchinger, of New Orleans, attorneys for . plaintiff, appellee.
    Monroe & Lemann, W. J. Suthon, Jr., of New Orleans, attorneys for defendant, appellant.
   CLAIBORNE, J.

This is a suit for merchandise misdelivered by defendant.

The plaintiff alleged that on July 21st, 1920, it delivered to the defendant a case of cotton goods for shipment to W. H. Magee & Co. at Prentiss, Miss., of the value of $582.51; that said shipment was, through error, addresesd to Purvis, Miss., a nearby station on the line of defendant railroad; that plaintiff was informed by said railroad that the goods had been delivered to one J. T. Magee at Prentiss, who denied receipt of same.

Plaintiff claims the value of said goods.

The defense admitted the shipment of the goods, and their value and the delivery as alleged, and averred that the error was that of plaintiff and not of defendant, and contributed to the loss of the shipment and bars the plaintiff from the right of recovery.

There was judgment for plaintiff aind defendant has appealed.

The defense is based upon the argument that there was no firm in Prentiss by the name of W. H. Magee, but there was pne 4by the name of J. T. Magee, and beca'íise the latter had business relations writh the plaintiff the defendants were under the impression that the plaintiff had made an error in the initials of the name of the consignee and for that reason had delivered the goods to J. T. Magee.

We think the defense is without merit. The paramount duty of the carrier is to deliver the goods to the consignee; if an error in his name was made the defendant should have communicated with the consignor to ascertain the cause of the error. C. C. 2751 (2722); Copes vs. Phelps & Co., 24 La. Ann. 562.

The authorities quoted by the defendant have no analogy to the case at bar.


text:
    No. 8685
    Orleans
    KAKARAKIS BROS. v. PATORNO AND SON
    (October 17, 1927. Opinion and Decree.)
    (November 14, 1927. Rehearing Refused.)
    (January 20, 1928. Writ of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Court)

    1. Louisiana Digest — Evidence-Par. 337, 349.
    In weighing the testimony of witnesses that which is direct and un-impeached will prevail over that which is conflicting and contradictory.
    Appeal from Civil District Court, Hon. Porter Parker, Judge.
    Action by Kakarakis Bros, against A. Patorno and Son.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Dart & Dart, L. L. Dubourg, of New Orleans, attorneys for plaintiff, appellant.
    A.- J. Rossi, F. F. Tessier, Charles I. Denechaud, Ernest J. Robin, of New Orleans, attorneys for defendant, appellee.
   CLAIBORNE, J.

Plaintiffs claim of defendants $756.32, amount overpaid on a contract of sale of certain oils.

They allege that they reside in Chicago; that in October, 1919, they purchased from defendants forty-five barrels of Spanish olive oil at the price of $2.65 per gallon F.O.B. New Orleans; that said oil was shipped to plaintiffs on the Illinois Central Railroad by bill of lading, sight draft attached, during the early part of November, and was received by them on November 8th, 1919, when th,ey paid the draft; that they were billed by defendants for 3410% gallons, $9,036.50, and that they also paid $85.23 for refrigeration, making a total of $9,121.73; that on the arrival of said barrels of oil plaintiffs had the same weighed by a public weigher, which disclosed a shortage of 589 pounds in the gross weight of said 45 barrels, equal in gallons to 78.5 gallons, amounting, at the- price of $2.65 per gallon, to the sum of $208.03; that plaintiffs then had the 45 barrels emptied and weighe.d to ascertain the amount of tare; that said weighing by the same public weigher disclosed that the tare on said barrels amounted to 1532 pounds more than the amount allowed by the defendant, equal to 206.9 gallons of oil, or at the price of $2.65 per gallon to $548.29; that the difference in gross weight and tare on said 45 barrels is as follows:

As billed by defendant:

Gross weight ________________ 29,775 lbs.

Less Tare_______________________ 4,160 lbs.

Balance __________________________ 25,615 lbs.

Gross weight found by public weigher in Chicago _____________________ 29,186 lbs.

Tare ________________________________ 5,712 lbs.

Balance ____________________________ 23,474 lbs.

Difference in weight____ 2,141 lhs.

Or a shortage, at the rate of 7.5 pounds to the gallon, of 285.46 gallons, at $2.65 per gallon makes $756.46, which the plaintiffs claim from the defendants.

The defendants admitted the sale of 45 barrels of oil at $2.65 per gallon, as' alleged, the shipment thereof to the plaintiffs with a sight draft attached to a bill of lading and the payment thereof hy plain tiffs; that they billed the plaintiffs for 3410% gallons which, at $2.65 per gallon amounted to $9,036.50; but they denied all the other allegations of the petition.

There was judgment in favor of defend ants, rejecting plaintiffs’ demand.

They have appealed.

This case presents, therefore, two questions for' determination: First: Did the 45 barrels shipped by defendants contain 3410% gallons billed by defendants against the plaintiffs and paid by the latter; and Second: Was there a difference of 1552 pounds in the tare weight of those 45 barrels ?

Anthony Patorno, on behalf of defendants, testifies that he originally purchased, through T. J. Lipscomb, agent, fifty barrels of oil; that the oil at that time was weighed on the dock by Prados and Douglas, public weighers, upon whose certificate they settled with Lipscomb, both as to tare and gross weight; they had the barrels cooipered because they had leaked badly; the oil was then hauled to defendants’ warehouse; of this oil they sold 45 barrels to the plaintiffs of Chicago, through the American Grocers Brokerage Company also of Chicago, for the price of $2.65 per gallon.

Owing to the leakage of the barrels they were emptied and weighed, and then refilled and reweighed by Prados and Douglas in order to get at the exact weights; the 45 barrels were then hauled by defendants’ drays to the cold storage and there they were frozen hard; and from the cold storage they were delivered directly to the railroad refrigerator cars, and thence hauled to Chicago; the 45 barrels were thus weighed twice.

The defendants produced a certificate of weights, dated New Orleans, October 29th, 1919, signed by Prados and Douglas, per “Spindle,” purporting to be the separate weights of 45 several barrels of olive oil, ex store, for account of A. Patorno, total-ling in pounds __________________________________________ 29,775

Less tare weight of barrels ---------------- 4,160

Balance ______________________________________________________ 25,615

which at the rate of 7.56 pounds to the gallon, at $2.65 per gallon, made a total of $9,036.50. Plaintiffs also added thereto for refrigeration of oil $85.23. But this item seems to have been settled and is not insisted upon.

John Lipscomb, for defendants, testified that he sold 50 barrels of oil to the defendants; he did not have the barrels gauged or weighed; he made his bills according to the weights shown on the barrels; oil is generally sold hy kilos, each equal to 2.20 pounds; the tare was marked on the barrels; Patorno ipaid him according to those weights.

John T. Spindle is in the business of weighing and gauging for the last 20 years, for Prados and Douglas; lie weighed 45 barrels of oil in Patorno’s store in October, 1919; the weights are indicated on his certificate; he weighed each barrel with the oil in it; he weighed only five empty barrels to see if the tare would correspond with the tare marked on the barrel, and it did; the other 40 barrels were not emptied at all. Mr. Cusach signed the certificate; witness does the weighing, but Cusach signs all certificates as he is the certificate clerk.

It was admitted that if Henry Thompson testified he would swear that he took the 45 barrels from the store of A. Patorno and delivered them as received to the cold storage.

Gus Kakarakis, one of the plaintiffs, testified that the oil arrived in Chicágo on November 13th, frozen solid, with none of the barrels leaking; they paid the draft of $9,121.73 on November 8th, 1919; upon its arrival they had the oil and the barrels weighed together by V. S. Callaghan, public weigher; and on June 3rd, 1920, nearly seven months afterwards, they caused the barrels to be weighed by the same weigher, separately, the whole in the presence of witness; the oil and the barrels according to Patorno invoice weighed 29,775 pounds; acording to the Callaghan weight 29,186 pounds; a deficiency of 589 pounds.

The tare weight of the barrels according to Callaghan was 5712 pounds; according to Patorno 4160 pounds; an excess of 1552 pounds; making a difference of 2141 pounds. The barrels were not leaking and the weather was cold, below freezing in the refrigerator car. The equivalent of 589 pounds is 78.50 gallons; and of 1552 pounds is 184.86 gallons; making a total of 263.36 gallons; which, at $2.65 a gallon, is equivalent to $697.90; the barrels weighed in June, 1920, bore marks and were the same weighed on November 13th, 1919.

Prank Kakarakis testified that the oil and barrels were weighed upon their arrival by Y. S. Callaghan; the barrels were afterwards weighed separately; he corroborates Gus Kakarakis in every detail.

. V. S. Callaghan is a public weigher in Chicago; on November 13th, 1919, he weighed 45 barrels of oil shipped by A. Patorno to Kakarakis Brothers, and on June 3rd, 1920, he weighed the same 45 barrels empty; he annexed his two certificates for the oil and for the barrels, both signed by him; the oil was frozen hard in the barrels on November 13th, and the barrels did not leak, nor was there any oil on the floor of the car.

W. W. Beerkin, President of the American Grocers’ Brokerage Co., corroborates the sale made through them by Patorno to Kakarakis and annexed much correspondence on the subject between the brokerage company and Patorno. The company obtained from the defendants a return of most of the $85.23 charged by defendants for refrigeration and included in the amount of their draft of $9,121.73. Prom this correspondence it appears that immediately after the weighing by Callaghan plaintiffs called the attention of the defendants to he difference in weights and tares and sent them an invoice for the same. The plaintiffs had emptied six barrels and ascertained the tare on them and concluded the same tare existed on all other barrels.

In three letters dated November 3rd, December 8th, 1920, and January 18th, 1921, defendants wrote to the American Grocers Brokerage Co., telling them that the barrels arrived from Spain in very bad condition and leaking considerably; that they were immediately recoopered on the dock; that the oil was then loaded upon an I. C. R. R. Co. refrigerator car for shipment to Kakarakis, after which the barrels began to leak tremendously; two days elapsed before they could unload the car, but not before the oil had leaked about 400 gallons or $1800 worth; the oil was then withdrawn from the barrels, which were recoopered and strengthened individually; the empties were then weighed, refilled and frozen by refrigeration and shipped immediately; they refunded $5.96 charged in error, and also $53.27, the actual cost of freezing. Two important statements are contradicted by defendants, or his witnesses. Lipscomb testified that he never had the oil gauged. The defendants were requested to produce the alleged first weighing by Prados and Douglas, which they failed to do. Neither did they show what the barrels they bought weighed, nor the price paid by them. Nor did Spindle or Prados and Douglas testify that they weighed the barrels twice.

John T. Spindle testified that the tare on the barrels was marked; he weighed only five empty barrels; the tare on them cor responded with the weight, so he adopted the tare weight marked on the remaining 40 barrels without weighing them empty; the remaining 40 barrels were not emptied at all.

In the presence of this discrepancy between the testimony of defendant and his letters, and between his witnesses and himself, and the testimony of Spindle, who certifies to having weighed 45 barrels, when in fact he weighed only five, their testimony brings no conviction to our minds.

We have no assurance that the weighing done by Patorno was before or after this tremendous leaking of the barrels. Nor that Spindle did not take the weights of the barrels full according to the weights shown on the barrels, as he did for the empty barrels. On the other hand, the plaintiffs’ three witnesses, Gus and Frank Kakarakis and Callaghan, the public weigh-er, swear positively and clearly and without any circumstance to affect the truth of their testimony, as to the weights of the 45 barrels with the oil within them and as to tie tare of the barrels after the oil had been taken out of them.

The preponderance of credibility is with them. Nor is there any strength in the ‘ argument that the barrels absorbed any oil after they had been weighed in New Oreans. They were the same old barrels that had left Spain with the oil in them, and they were oil-soaked when they arrived in New Orleans.

After the oil was taken out of them from November, 1919, to June, 1920, they must have weighed less. Besides, if it is true that the barrels were weighed in New Orleans on the eve of their shipment, they could not have absorbed oil during their conveyance to Chicago because the oil was frozen hard; and when the oil reached Chicago after a few days from the alleged weighing in New Orleans, six of the barrels were Weighed in Chicago and already showed a heavier weight. This is not a case where the opinion of the trial Court can control this Court, because all of plaintiffs’ testimony was taken in Chicago by commission, while all of defendants’ was heard in New Orleans.

We conclude, therefore, that the plaintiffs are entitled to reimbursement for the deficiency in the weight of the oil and barrels and for the excess in weight of the empty barrels.

The former is ________________________________ 589 pounds

The latter is ________________________________ 1,552 pounds

Making a total of ____________________ 2,141 pounds

at the rate of 7.56 pounds to each gallon equals 283.20 gallons; at the price of $2.65 per gallon makes $750.48.

It is, therefore, ordered that the judgment herein be reversed and set aside, and it is now ordered that the defendants, A. Patorno and Son,- and the individual members thereof, Anthony Patorno, Jr., and John Patorno, be condemned in solido to pay tq the plaintiffs herein, Kakarakis Brothers, the sum of Seven Hundred Fifty and 48-100 Dollars, with five per cent per annum interest from January 21st, 1921, till paid and all costs of suit.

Judgment reversed.


author: REYNOLDS, J.

text:
    No. 2862
    Second Circuit
    KIMBALL ET AL. v. PORET ET AL.
    (February 3, 1928. Opinion and Decree.)

      {Syllabus by the Court)
    1. Louisiana Digest — Bills and Notes— Par. 95, 127, 128.
    A note drawn payable to maker’s order is not complete as a negotiable instrument until endorsed by him; but where sold and delivered by him without endorsement, the sale may be established by parol evidence, or by endorsement without recourse subsequently by the maker.
    Hughes vs. Harrison, 2 Mar. (D. S.) 90.
    Achee vs. Williams, 6 La. App. 316. Pineland Realty Co. vs. Clements, 149 La. 274, 88 So. 818.
    Appeal from the Twelfth Judicial District Court of Louisiana, Parish of Avoyelles. Hon. L. P. Gremillion, Judge.
    Action by Mrs. Louise Kimball, Wife, etc., et al. against Edward A. Poret et al.
    There was judgment for defendants and plaintiffs appealed.
    Judgment affirmed.
    N. I. Normand, of Marksville, attorney for plaintiffs, appellants.
    Bordelon & Norman, of Marksville, attorneys for defendants, appellees.
    STATEMENT OF THE CASE
    This is an injunction suit to restrain the sale of immovable property under executory process on the ground that the mortgage debt was paid.
    Defendant denied that the debt was paid and alleged that it was a subsisting obligation.
    On these issues the case was tried and there was judgment in favor of the defendant and the plaintiff appealed.
   REYNOLDS, J.

OPINION

S. D. Saucier was the owner and holder of a certain promissory note for the sum of $140.00, dated January 9, 1922, signed by J. Y. Kimball, payable to the order of S. D. Saucier on December 1, 1922, bearing 8% interest from its date until paid and stipulating payment of 10% attorney’s fees, and secured by mortgage on certain immovable property situated in Avoyelles parish, on which note sums aggregating $30.02 had been paid.

On July 31, 1925, defendant, Edward A. Poret, delivered to S. D. Saucier his check for $141.70 on a local bank and Saucier delivered to him the note in question unendorsed.

Some days later, at the request of Poret, Saucier endorsed on the back of the note: “Without Recourse. S. A. Saucier.”

Poret sued out executory process on the note and mortgage, making the plaintiffs defendants therein on the allegation that J. V. Kimball had died and that they were his sole heirs and had unconditionally accepted his succession, and the mortgaged property was duly seized and advertised for sale.

Thereupon the plaintiffs brought this suit.

It is their contention that Poret did not buy the note from Saucier but paid it and that the note and mortgage were extinguished.

And the question to be determined by us is whether the note was purchased or paid by Poret.

S. D. Saucier testified:

“Q. When he (Edward A. Poret) called at your home in July or August to see you in regard to the note, what did he say?
“A. He wanted to take up Mr. Kimball’s note.
“Q. Did he take it up?
“A. Yes, he did.
“Q. You remember when you endorsed that note, did you endorse it the same day Dr. Poret paid you for the note?
“A. No, sir, I did not.
“Q. How long after did you endorse it, about?
“A. About a week or two after, I could not say exactly.
“Q. How came you to endorse it a week or two after?
“A. He asked me to.
“Q. And it was done at the suggestion of Dr. Poret, was it not?
“A. Yes, sir.
‡ ‡ *
“Q. He paid the full value of the note, did he?
“A. Yes, sir.
“Q. You gave him the note?
“A. Yes, sir.
‡ $
“Q. If he had asked you to endorse it, would you have done so?
“A. Yes, sir.
“Q: So you sold him the note. He paid you for it. Did he?
“A. Yes, sir; I sold him the note and he paid me for it.
# ❖ * *
“Q. So the amount given to you on this check covered the principal and interest of the note?
“A. Yes, sir; it did.”

Edward A. Poret testified:

“Q. Did you know Mr. J. V. Kimball?
“A. Yes, sir; I knew him well.
“Q. Is he dead now?
“A. Yes, sir, he is.
“Q. Did you visit him during his illness and treat him?
“A. Yes, sir, I did.
“Q. Did he owe you for medical attention?
“A. Yes, sir, he did.
“Q. Do you remember the amount he owed you?
“A. Yes, sir, I do.
“Q. State, please?
“A. Two hundred and no-100 ($200.00) dollars.
“Q. You have obtained judgment against the widow and heirs for this amount?
“A. Yes, sir, I have.
$ $ ‡ ‡
“Q. You knew that at the time of Mr. Kimball’s death there was an outstanding mortgage held by Mr. S. D. Saucier?
“A. Yes, sir, I did.
“Q. You went to Mr. Saucier to purchase that note, doctor?
“A. Yes, sir, I did.
“Q. Examine the document marked defendant No. 1 and state whether or not this is the check which you paid Mr. Sidney D. Saucier for the note?
“A. Yes, sir, this is my check; this is the check I paid him for the note.
“Q. Was the note turned over to you by Mr. Saucier?
“A. Yes, sir, it was.
“Q. He did not mark the note paid?
“A. No, sir, he did not.
“Q. Then or at any other time?
“A. No, sir, not at all.
“Q. Examine the note and state whether' this is the note you bought?
“A. Yes, sir, this is the note.
“Q. Did you pay this note for the Kimball heirs?
“A. No, sir, I bought this note for myself.
“Q. The reason for your wanting to purchase the note was because you already held a claim for medical attention given against Mr. J. Y. Kimball’s succession?
“A. Yes, sir.
“Q. Did you know that this note would have to be paid first?
“A. Yes, sir.
“Q. So, doctor, you claim that you bought thei note from Mr. Saucier?
“A. I surely did, Mr. Normand.”

There is no evidence contradicting the testimony of either of these witnesses and their testimony makes it clear that it was Saucier’s intention to sell and Poret’s intention to huy the note in question and that the transaction between them was one of purchase and sale. The note was delivered by Saucier to Poret at the time of the purchase and the price therefor paid. The fact that the note was not endorsed by Saucier at the time he delivered it to Poret and was endorsed later does not deprive the transaction of the effects of a sale. Even - without such endorsement the note and mortgage might have been enforced by the purchaser.

Hughes vs. Harrison, 2 Mar. (O. S.) 90.

Achee vs. Williams, 6 La. App. 316.

Pineland Realty Co. vs. Clements, 149 La. 274, 88 So. 818.

Our learned brother of the District Court rendered an able written opinion rejecting plaintiffs’ demand. Under the law and the evidence'his decision is correct and accordingly the judgment appealed from is affirmed.


text:
    No. 3076
    Second Circuit
    WEIL v. CITY OF ALEXANDRIA
    (February 3, 1928. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Municipalities — Par. 259, 261.
    It is negligence on the part of a municipality to allow a hole 16 inches by 14% inches by 22% inches in dimensions made by its employees in its sidewalk between the pavement and the street curb and eight inches from the former, to remain open and unguarded and without any light or other danger signal at night to warn pedestrians against falling therein; and where a pedestrian, unaware of the existence of the danger, falls into the hole and is injured, the municipality will be liable to him in damages for such injuries in the absence of proof of contributory negligence on his part.
    Long vs. American Ry. Express Co., 150 La. 184, 90 So. 563.
    Tiller vs. City of Monroe, 5 La. App. 473.
    Cole vs. Central Contracting Co., 5 La. App. 513.
    2. Louisiana Digest — Municipalities — Par. 255, 261.
    The law imposes on a city the mandatory duty of maintaining its sidewalks in such condition as not to endanger those who use them; and it is negligence for a city, in making repairs to a sidewalk, to leave a pit or hole in the neutral part thereof between the pavement and the street curb without a railing around it and without any light or other danger signal at night to warn pedestrians using the sidewalk of the presence of the pit or hole.
    Allen vs. City of Minden, 127 La. 403, 53 So. 666.
    Cline vs. City of New Orleans, 41 La. Ann. 1031, 6 So. 851.
    O’Neill vs. City of New Orleans, 30 La. Ann. 220.

      Gueble vs. City of Lafayette, 121 La. 909, 46 So. 917.
    3. Louisiana Digest — Damages—Par. 57.
    In the assessment of damages in actions for offenses or quasi offenses, much discretion must be left to the trial judge.
    Civil Code, Article 1934, paragraph 3. Enders vs. Skannal, 35 La. Ann. 1000. Nash vs. Longville Lumber Co., 148 La. 943, 88 So. 226.
    Appeal from the Ninth Judicial District Court of Louisiana, Parish of Rapides. Hon. Leven L. Hooe, Judge.
    Action by Mrs. Jacques Weil against City of Alexandria.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    K. Hundley, of Alexandria, attorney for* plaintiff, appellee.
    S. L. Richey, of Alexandria, attorney for defendant, appellant.
   REYNOLDS, J.

Plaintiff sues defendant for $2560.00 damages alleged to have been sustained by her in falling into a hole 16 inches by 14% inches by 22% inches in dimensions excavated by defendant’s employees in the neutral part of a sidewalk between the pavement and the street curb and about 8 inches from the latter, and which hole had been left unguarded and without any light or other warning signal for four days and four nights.

Defendant denied' liability and alleged contributory negligence.

On these issues the case was tried and there was judgment in favor of the plaintiff and against the defendant for the sum of $310.00 with legal interest from judicial demand. Both defendant and plaintiff have appealed.

OPINION

The evidence conclusively establishes that the employees of defendant excavated a hole 16 inches by 14% inches by 22% inches in dimensions in the unpaved or neutral part of the sidewalk between the pavement and the street curb and about 8 inches from the former and let it remain open and unguarded and without any light or other danger sign for four days and four nights and that it was a menace to the safety of pedestrians and a trap into which any person using the sidewalk might fall.

Naturally the defendant is liable in damages to anyone suffering injuries by falling into such hole without any negligence on his part.

Plaintiff was walking along the sidewalk in company with friends after dark and fell into the hole and thereby wrenched her back and sprained her ankle.

■Defendant insists that plaintiff was negligent and that her negligence contributed to cause the injury, but in our opinion the evidence fails to establish the slightest negligence on her part. In company with friends she was walking along the sidewalk and conversing and laughing and it was not negligence on her part to step off of the paved part of the sidewalk and onto the neutral or unpaved part thereof either backward or forward at the place of the accident without knowledge of the presence of the hole. No harm would have come to her if the hole had not been there or it being there, had it been properly guarded or a light or other warning of its presence been there.

In Choppin vs. Carrollton Railroad Co., 17 La. Ann. 19, it was held that even where the conduct of the plaintiff has, as a matter of fact, contributed to the accident, but such conduct has not been, in a legal sense, imprudent or negligent, the plaintiff may recover from the defendant at fault.

And in Ford vs. Tremont Lumber Co., 123 La. 742, 49 So. 492, that a person is not negligent for failing to anticipate that other persons will be negligent.

In our opinion the defendant was negligent and the plaintiff not negligent and that the defendant is. liable to her for the damages suffered in falling into the hole.

This brings us to the question of the amount of damages plaintiff is entitled to.

She did not call a physician the night of the accident and was not permanently injured as a result of the accident. She suffered some pain and incurred some expense. The district judge who heard and saw the witnesses testify and observed their demeanor on the witness stand was of opinion that plaintiff was entitled to $250.00 for the pain and suffering and to $60.00 for medical attention and servant hire, made necessary by the injuries.

In suits sounding in damages for personal injuries the opinion of the trial judge is entitled to much weight.

Civil Code, Article 1934, paragraph 3.

Enders vs. Skannal, 35 La. Ann. 1005.

“A verdict of $250.00 for the breaking of two ribs and a contusion of the hip and ankle on one side, which were not shown to be permanent, though small, could not be said to be inadequate.”

Lanier vs. Hammond Lumber Co., 141 La. 829, 75 So. 738.

We cannot say that the trial court erred either in rendering judgment in favor of the plaintiff or in the amount of damages awarded her.

It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed.


author: MOUTON, J. LECHE, J. MOUTON, J.

text:
    No. -
    First Circuit
    L’ADMIRAULT v. POINTE COUPEE MOTOR COMPANY, INC.
    (Dec. 6, 1927. Opinion and Decree.)
    (Jan. 5, 1928. Rehearing Refused.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Automobiles — Par. 4 c.
    It' is the imperative duty of one driving an automobile to slacken his speed when he sees a child on the side of the road waiting for a moving bus to pass before crossing. His failure to do so constitutes negligence, making him and his employer liable for damages.
    2. Louisiana Digest — Automobiles—Par. 9.
    $1000.00 is sufficient quantum of damages for perforated wound on side of nose, fractured arm and lacerated wound on right side of abdomen; which caused hemorrhages in the mucous membrane of the head and made the child totally unconscious for a period of fourteen days, then semi-conscious for an equal period, remaining in bed sixty days.
    Appeal from the Parish of Pointe Coupee. Hon. W. C. Carruth, District Judge.
    Action by Louis L’Admirault against Pointe Coupee Motor Company, Inc.
    There was judgment for defendant and plaintiff appealed.
    Judgment amended and affirmed.
    Benton & Benton, Baton Rouge, attorneys for plaintiff, appellant.
    Albin Provosty, New Roads, attorney for defendant, appellee.
   MOUTON, J.

John L’Admirault, aged seven, was injured by an auto in a public road which leads south from New Roads. The auto which collided with the child was being driven by Prank Collins, an employee of defendant company. This suit is brought by the father of the child for $470.65 in his own right, and in the further sum of $5,000.00 for the minor. Judgment was rendered in favor of plaintiff in the sum of $446.76 for medical attention to the child, and for $500.00 as damages. Plaintiff appeals.

A school bus was going south from New Roads, and the auto driven by Collins, was traveling in the opposite direction, northward towards New Roads. John, the injured minor, and his sister, about nine or ten years old, were standing on the side of the road. Collins says he saw these children on the side of the road; that the bus stopped between the “kids”, as he calls them, and that when the bus was “pulling out' to go” the boy broke from behind the bus to go across the road and was struck by his auto. He says as he saw the child he immediately applied the brakes, but without avail, as the accident was unavoidable.

It is clearly shown by the evidence of Collins and two other witnesses of defendant company, that the injured child was standing on the side of the road; that when the bus moved on, he tried to cross the roadway to the opposite side, running, and was struck when he had reached a point a little over the center of the highway.

Oscar Parent, also a witness for defendant, says the boy was holding a coupling on the bus and was runing behind it, that when he turned it loose, he cut across the road into the pathway of the auto, when he was injured. This statement is flatly contradicted by the testimony of Collins and two other witnesses for defendant, and must be eliminated from consideration in the decision of this suit. It must, .therefore, be considered as an established fact that the child had emerged from behind the bus as it continued on its journey, and that as he attempted to cross the highway, was injured as hereinabove stated.

Collins says that he had seen the injured child standing with his sister at a distance of about two hundred yards before he reached the bus. There can be no question from his evidence that he Had seen them at or about that distance before he got to that point. They were standing there when he first' saw them, and he was then traveling, according to his own testimony, between twenty and twenty-five miles an hour. Counsel for plaintiff propounded the following question to Collins:

“The answer says this: That up to the time that you actually saw said boy in front of your car on the ipublic road, said boy had been completely screened from view by said bus, and seemed to have been waiting for said bus to pass by so that he might cross the road to go to his home, which was on the right hand side of the street looking to New Roads.
“Question: Is that the impression that you formed of those children as they stood there by the side of the road?
“Answer: Yes, sir.
“Question: You had that impression at the time you saw them?
“Answer: Yes, sir.
“Question: You are. positive of that?
“Answer: Yes, sir.”

Obviously, this statement of Collins has explicit reference to the time that he first saw the boy standing on the side of the road, because it would be absurd to say that the impression he had about the boy waiting to cross the road was formed when he suddenly came in contact with him from behind the bus while he was attempting to cross to the other side of the roadway. There can be no question that the boy appeared at the time to be standing on the side of the road as if waiting to cross to the other side. Such was unquestionably the impression Collins got from the apparent attitude of the child. The fact is that the appearance of the child on the side of the roadway created the same impression on Henry Hebert, another witness of defendant, who was following the hus in an auto. Asked if he had seen the child before he ran across the road, he answered that he was then standing on the side of the road. “I think waiting for the bus to pass.” From this statement of Hebert, and Collins himself, the driver of the auto that struck the child, the conclusion ' of fact unquestionably shows that the child, when standing on the roadside, was apparently waiting to cross over after the passage of the bus; and, it is equally certain that such was the impression created in Collins’ mind. Although so impressed, Collins, according to his own testimony, did not in the least slacken the rate of speed at which he had been traveling, but continued at 'the rate of twenty miles an hour up to the time of placing his foot on the brake in his unavailing attempt to avert the accident. When he saw the child on the roadside and saw or felt that he was waiting for the moving of the bus to cross over, the imperative duty devolved upon him to immediately slacken the speed of his auto, or to have it under control, that he might avoid running over the child. In failing to do so, he was clearly negligent and at fault for which the defendant company was properly held liable in damages. The only remaining question is as to the amount of damages which should be allowed.

The proof shows that the child was knocked down unconscious, that when he was picked up from the road,, his parents thought he was dead. It was shown by the physician who attended him, that he suffered a perforated wound on the side of his nose, a fractured arm, and a lacerated wound in the right side of the abdomen; that he had hemorrhages in the mucous membrane of the head and that he was totally unconscious for a period of fourteen days, then semi-conscious for an equal, if not a greater period of time. After he regained consciousness it was shown by his mother that he remained sixty days in bed. The physician said that his nerve centers were impaired and that the Jacksonian type of epilepsy might follow with the possibility of a permanent physical and mental impairment. In cases showing no greater injury the Supreme Court has allowed the recovery of damages in amounts ranging from $1,000.00 to $2,000.00 or more. See Thompson vs. Com’l Nat’l Bank, 156 La. 481, 100 South. 688; Monge vs. New Orleans Ry. & Light Co., 145 La. 435, 82 South. 397; Knight vs. V. S. & P. Ry. Co., 142 La. 359, 76 South. 799.

The trial Judge allowed $500.00 in damages. This amount is inadequate and we feel constrained tq raise it to the sum of One Thousand Dollars.

It is, therefore, ordered, adjudged and decreed that .the amount decreed in the judgment appealed from be increased from the sum of $946.76 to the sum of $1446.76, and as amended it be affirmed with costs.

DISSENTING OPINION.

LECHE, J.

The demand herein is for damages, resulting from personal injuries inflicted upon plaintiff’s eight-year-old son who was struck by an automobile driven by defendant’s employee.

The accident happened a couple of miles out of New Roads on the public highway along False River, about three o’clock in the afternoon of December 3, 1925.

Plaintiff’s boy was walking along the right hand side and near the edge of the road, in a westerly direction away from New Roads. A large bus used for the transportation of school children, going in the same direction passed him and immediately thereafter, he darted aeross the road to his left and ran into and was struck by the automobile of defendant, driven by one Frank Hollins, going in the opposite direction or towards New Roads. He was severely injured and the question in the case, is whether Hollins could, by ordinary prudence have avoided the acci dent.

Hollins is a colored man, and Mr. Sentell, president of the defendant company, in whose employ he had been for about a year and a half before the trial of the case, and still was at the time of trial, credits him with a good reputation, as reliable, trustworthy and a careful chauffeur. He is, however, illiterate, and judging from his testimony, is of very ordinary intelligence. The contention of plaintiff is that Hollins saw the boy standing and waiting on the side of the road, in order that he might cross the road to go to his home, which was situated at a point about opposite the place where he was standing; that ordinary prudence suggested that Hollins should have apprehended and foreseen that the boy might, through childish lack of judgment and foresight, cross the road behind the school bus, without looking, and that it was Hollins’- duty to guard against such a danger.

As proof of this lack of care on the part of Hollins, defendant propounded to Hollins, on cross-examination, the following question.:

“Q. The answer says this: ‘that up to that time that you actually saw the said boy in front of your car on the public road, said boy had been completely screened from view by said bus, and seemed to have been waiting for said bus to pass by, so that he might cross the road to go to his home, which was on the right hand side of the street looking to New Roads.’ Is that the impression that' you formed of those children as they stood there by the side of the road?
“A. Yes, sir.
“Q. You had that impression at the time you saw them?
“A. Yes, sir.
“A. You are positive of that?
“A. Yes, sir.”

As a matter of fact, Hollins did not know the boy, nor the little girl who is said to have been with him. He did not know where they lived. He saw nothing to indicate that the boy intended to cross the road. This much abundantly appears from other parts of his testimony. The only thing supporting plaintiff’s contention is the allegation in the answer, that the boy “seemed to have been waiting for the bus to pass by, so that he might cross the road to go to his home,” and the answer of Hollins that such was his impression. Evidently, Hollins did not know the meaning of the word “impression” and if he did, then the statements which he made in regard to his appreciation of the situation when he collided with the boy are so contradictory as not to be worthy of belief.

The fact that Hollins did not know the victim of the accident, did not observe anything to indicate the boy’s intention to cross the road, did not know that the boy’s home was across the road from the place where the accident happened, all of which facts contradict the theory of the answer and were admitted without objection, and finally the statement of Hollins that he, Hollins, could not have avoided striking the boy to save his life, indicate that Hollins does not know the meaning of the word “impression” and had no idea that the boy would emerge from behind the bus and get in the way, in front of and in the path of his automobile.

An admission such as is made in defendant’s answer, when shown without objection on the part of the opposite party, to be not only unsupported by the testimony but in direct conflict therewith, should not stand in the way of ascertaining the real truth and reaching a conclusion in conformity with all the facts in the case. Technicalities should not obstruct' the fair administration of justice.

Oscar Parent, a white man, who was standing in front of his blacksmith shop situated a few hundred feet, in the direction of New Roads, from where the accident happened, absolutely disinterested in the case, and the only witness who saw the whole occurrence, says that the boy victim was holding on to the b'aek of the bus as the bus passed his blacksmith shop, and when the bus reached the boy’s home, the boy let go his hold, and darted across the road in the path of the automobile by which he was struck. This statement of Parent is partly corroborated by Henry Landry (p. 66), a young white man who was in an automobile following the bus.

This version qf the accident bears all the earmarks of truth and reason and shows that the injury inflicted on plaintiff’s son was unavoidable.

The judgment appealed from is in favor of plaintiff and does not seem to be supported by the testimony in the record. It should be reversed and plaintiff’s demand rejected at his costs, and for these reasons, I respectfully dissent.

ON APPLICATION FOR REHEARING.

MOUTON, J.

In our original opinion we made reference to the question that counsel for plaintiff had put to Collins and which was answered by him as to whether, when he first saw the child, the latter seemed to have been “waiting for the bus to pass by so that he might cross the road to go to his house”. His answer to that question was that he had been so impressed when he saw the children on the side of the road. In discussing this feature of the case, and which is an important one, counsel for applicant says, we failed, in our appreciation of this part of the evidence, to consider the fact that Collins is an illiterate, ignorant negro, and was merely answering affirmatively a leading question. In considering the contention so made on rehearing, it is proper to observe that the record fails to show that counsel attempted in any way to have Collins explain whether he understood or not, the question which had been so propounded to him. A question or two would have shown whether Collins understood or did not understand the language which had been used to formulate the question. There are no words used in the question as we see it, that an ignorant or illiterate man could not understand, and there is nothing to indicate in the record that the language in which the question was couched, was beyond the comprehension of Collins. It must also be observed in connection with the foregoing, that 'the question propounded was taken from the answer of defendant company, which, doubtless must have obtained the information necessary to prepare it, from Collins, the driver of the car that caused the injury. The other complaints urged in the motion for rehearing are disposed of in our opinion, adversely to the contentions of the mover and we find no reason to change the conclusions reached by us in our original examination of the case. It would serve no useful purpose to indulge in a repetition of what we said originally.

The rehearing is therefore refused.


author: MOUTON, J.

text:
    No. -
    First Circuit
    MIDKIFF v. LONG-BELL LUMBER CO.
    (Jan. 5, 1928. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Timber — Par. 15; Prescription — Par. 110.
    Article 3537 of the Civil Code, as amended by Act No. 33 of 1902, makes prescription of one year begin from the date that owner of timber saw defendant fell it on his land even though at that time the owner did not know that the timber belonged to him, the boundary-having been thereafter determined by a survey.
    2. Louisiana Digest — Prescription — Par. 110.
    The burden of proof is on the plaintiff seeking to bring himself within the exception found in Article 3537 of the Civil Code, as amended by Act No. 33 of 1902, which provides for the running of the prescriptible period of one year from the date of knowledge received by the owner.
    Appeal from Beauregard Parish, Hon. Thos. P. Porter, Judge.
    Action by W. Arthur Midkiff against Long-Bell Lumber Company.
    There was judgment for defendant sustaining plea of prescription and plaintiff appealed.
    Judgment affirmed.
    Ped C. Kay, De Ridder, attorney for plaintiff, appellant.
    F. E. Powell, DeRidder, attorney for defendant, appellee.
   MOUTON, J.

Plaintiff and defendant company were owners of contiguous timber lands. In 1923, defendant company felled some timber, thinking at the time that it was being taken from its property. Plaintiff saw when this timber was cut, but was likewise-under the impression that it was being removed from the premises of the company. In 1926, three years after this timber had been cut, a survey was made to establish, the boundary line between these two adjoining tracts. It was then discovered, as a result of the survey, that the timber had been taken from a small strip of the land which was within the boundary lines of the plaintiff. Thereafter, in 1927, plaintiff brought this suit against defendant company for the value of this timber.

Defendant interposed the plea of prescription of one year to the demand of .the plaintiff, which was sustained below. Plaintiff appeals.

Article 3537 of the Civil Code provides .for the prescription of such actions in one year from the day the damages “are sustained”. Under the terms of this article, it is manifest that prescription had accrued when the suit was brought more than three years from the date of the damage. Plaintiff seeks relief under Act 33 of 1902, which amends the article of the Code above cited, as follows: “And when land, timber or property has been injured, cut, damaged or destroyed, from the date knowledge of such damage is received by the owner thereof”. It is on a proper application of this amendment to the facts, that this case turns.

Plaintiff contends that when the boundary line was fixed by the survey, he discovered that the timber had been removed from his land. He says, that it was from the time of this discovery through the survey, that he received knowledge of the damage he had suffered. As the survey was made in 1926 and the suit' of the plaintiff was instituted within one year from that date, he contends that the prescription of one year had not yet accrued.

The amendment says: that the action is prescribed in one year from the “date knowledge of such damage is received by the owner” of the property. It is obvious, that the burden of proving the date on which the owner received this knowledge could not be imposed on the defendant in a case of this character. It is plaintiff who is seeking to bring himself within the exception found in the amendment, which provides for the running of the prescriptible period from the date of knowledge received by the owner, and the burden rests upon him to sustain this defense. Citizen’s Bank vs. Jeansonne, 120 La. 393, 45 South. 367; Erwin vs. Lee Lumber Co., 163 La. 191, 111 South. 673.

It will be observed that prescription under Act 33, of 1902, begins to run from the date of the “knowledge” of the “damage” received by the owner and not from the time he ascertains his claim to the ownership of the property injured or damaged. Short' periods of prescription are usually provided for claims in damages and such like, and it is not to be presumed that the Legislature intended to permit an indefinite time for the claimant to establish his boundaries or his title of ownership. To so hold, would be to give a liberal construction to the amendment for the benefit of plaintiff, who. is claiming the privilege of an exception which was added to the general rule of prescription found in Article C. C. 3536. A party claiming the benefit of an exception is not entitled to a latitudinal interpretation of a statute covering such exception. The law favors the vigilant, and cannot extend relief to a party, who, after seeing the trespass or damage committed on his premises, allows the prescriptible period to elapse before asserting his rights for recoupment, if any he has.

The plea of prescription was properly maintained.


author: LECHE, J.

text:
    No. -
    First Circuit
    CODIFER v. HOLDSWORTH
    (February 15, 1928. Opinion and Decree.)

      (Syllabus by the Editor)
    1.Louisiana Digest — Sales—Par. 47.
    There is nothing illegal in giving a promise of sale of property of which the title is not in the promissor.
    2. Louisiana Digest — Sales—Par. 34, 47; Estoppel — Par. 32, 37.
    One who promises to sell property which he does not own is estopped from pleading want of ownership as a defense.
    3. Louisiana Digest — Sales—Par. 37, 47; Estoppel — Par. 32, 37.
    The promissor in a promise of sale has no right to take advantage of his own dereliction in carrying out an obligation which he had expressly agreed to perform.
    4. Louisiana Digest — Attorneys—Par. 59.
    Attorney’s fees of plaintiff are not allowed as part of judgment against defendant in a suit for breach of contract of promise of sale.
    Appeal from the Parish of St. Tammany. Hon. Prentice B. Carter, Judge.
    Action by Joseph W. Codifer against Edwin T. Holdsworth.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Frederick C. Querens, of New Orleans, attorney for plaintiff, appellee.
    L. V. Cooley, Jr., of Slidell, attorney for defendant, appellant.
   LECHE, J.

Joseph W. Codifer entered into a contract of promise of sale with Edwin T. Holdsworth, through John J. Driscoll, a real estate broker. The contract was written and signed on December 7, 1925; it describes the land, stipulates the price, of which sixty dollars was deposited and which amount was expressly agreed not to be earnest money, fixes a limit of sixty days for the execution of the sale, and it further stipulates that either party shall have the right to demand specific performance. There' were further stipulations in the contract to the effect that interest at eight per cent per annum should be paid by the purchaser during any delay and that in the event the title is not valid and cannot in a reasonable time and at reasonable expense be made valid, the contract should be null.

It seems that at the time Holdsworth listed the property with Driscoll, he only had evidence of title to a portion of the property, the rest thereof appearing as being owned by his brother and sisters, but that in point of fact Holdsworth was either acting for his co-owners or really owned the whole of the property. As soon as the contract was signed, Holdsworth proceeded to obtain written sales from his co-heirs in order to put of record written evidence of his ownership. This involved a delay which extended a little over thirty days beyond the time limit fixed in the contract for the execution of the sale. This delay was not objected to by Holds-worth, but was caused entirely by his tardiness in obtaining a valid conveyance from his co-heir, Mrs. Updegrove, who lived in the State of Texas.

As soon as the evidence of Holdsworth’s title was completed, plaintiff formally notified Holdsworth that he was ready to accept title, pay the balance of the purchase price and to pass the sale, and he appointed a time and place for that purpose. Holdsworth failed to appear and refused to carry out his agreement. Hence this suit for specific performance.

There are two main defenses on the part of Holdsworth.

The first is that the agreement is null and void as containing a promise to sell property that did not belong to him. He is effectually estopped from pleading such a defense. He represented himself as owner of the property and to permit him now to say that he was not the owner in order to evade an obligation voluntarily entered into by him would be to sanction misrepresentation and bad faith on his part. Besides, this, there is nothing wrong or illegal in promising to sell the property of another. The promissor may be a confidential agent of the owner or he may anticipate the acquisition of the property. A promise of sale is not always equivalent to a sale. The French dictum that “promesse de vente vaut vente” is not always true. There are many decisions of the Supreme Court recognizing the difference between a sale and a promise of sale. See Trichel vs. Home Insurance Company, 155 La. 459, 99 So. 403; Capo vs. Bugdahl, 117 La. 992, 42 So. 478; Barber Asphalt vs. St. Louis Cypress Co., 121 La. 167, 46 So. 193; Lehman vs. Rice, 118 La. 975, 43 So. 639. It was also held in the City of New Orleans vs. Riddell, 113 La. 1051, 37 So. 966, that a title acquired by one inures to the benefit of another to whom he had promised to sell the property.

Another defense is that plaintiff only offered to perform, after the time limit fixed in the contract had expired. It is patent from the evidence that defendant passively and actively agreed to the delay encountered in the preparation of a valid act of sale. He did so through his agent. Driscoll is a broker and, as such, was the agent of both parties, C. C. Art. 3018, and, beyond this, Driscoll was expressly vested with mandatary power in the contract of promise of sale signed by Holds-worth. He knew that it would take time to perfect his title to the property, and he is responsible for the unusual delay in procuring the deed from Mrs. Updegrove, which deed was signed on March 19, 1926. The delay fixed in the promise of sale was fixed at sixty days and therefore expired on February 7, 1926. Plaintiff carried out his offer to perform on March 24, 1926, or within a delay which is reasonable within the intendment of the contract, and which was ■ brought about by the negligence or non action of the defendant. Defendant has no right to take advantage of his own dereliction in carrying out an obligation which he had expressly agreed to perform.

There is no merit to either of these defenses. The judgment of the District Court is in favor of plaintiff, whose only complaint in his answer to defendant’s appeal is that the trial court should have allowed him attorney’s fees in the sum of one hundred and twenty ($120.00) dollars. If the district judge had granted this demand this court would have had to reverse that part of the judgment as there is no law to justify such claim in a snit of this kind. He makes no other complaint as to the correctness of the judgment, and it will therefore be affirmed as rendered and signed.