text:
    No. 12,670.
    Mrs. Margaret R. Cox et al. vs. Mrs. Nannie Von Ahlefeldt et als.
    The power of the owner to dispose of his property by donations inter vivos or mortis causa is limited by the number of his children living when he dies, hence called forced heirs, and the disposable portion when he leaves a daughter and the children of two deceased daughters, grandchildren being counted in place of their deceased parent, is one-third; the other two-thirds is the legitime of the forced heirs. O, C., Arts. 1493, 1495.
    This disposable portion is ascertained by adding to the property tlic deceased leaves at his death the value of all property he has disposed of by donations infer vivos, deducting his debts, and the residue determining the disposable portion according to the number of his children, Axes also their legitime as his forced heirs. C. C.. Arts. 1505, 1506
    Whether forced heirship is ownership in its full sense, of which the heir is seized of right, as applied to property embracing the legitime in the hands of third persons holding under alienations by the donors to whom the property has passed by the donations, nominal sales or similar acts of the deceased donor to the prejudice of his forced heirs, it is clear that by his death the right of action is vested in them to reduce or set aside such acts that impair their legitime, and to recover it from third persons holding under transfers from the donees. C. C., Arts. 1493, 1495, 1504, 1517: Code Napoleon, Arts. 930, 2444; 2d Troploñg, p. 127, Secs. 736, 741; p. 287, Sec. 903; p. 292 et seq.; 2d Mburlon, p. 292, Sec. 593; p. 311, Secs. 620, 621; 3d Boilleux, commenting on Art. 920, Code Napoleon.
    This right of action of the forced heir passes to his lieirS and assigns. C. C., Art. 1504; Code Napoleon, Art. 930; 12th Baurent, p. 185, Sec. 139; 3d Boilleux Comentaire sur Article 920, Napoleon Code; 2d Mourlon, pp. 311,313, 623; 12 An. 465.
    This suit of the heir of the forced heir is not the revocatory action, but one of “reduction” or “ revendication, to preserve or recover the legitime, of which he can not be deprived by the donation or similar acts of the deceased donor, and to which no alienation by the donees can convey title. C. 0., Art. 1517; O. N., Art. 930; 6 Martin, 529; 12 An. 401; 32 An. 357.
    A PPEAL from the Twentieth Judicial District Court for the Parish of Ascension. Guión, J.

      Fenner, Henderson & Fenner, Richard MeGulloh and Leigh Robin son for Plaintiffs, Appellants.

      Garleton Hunt, Samuel L. Gilmore, J. G. Gilmore, R. N. Sims and E. N. Pugh for Defendants, Appellees.
    Argued and submitted December 30, 1897.
    Opinion handed down February 7, 1898.
    Rehearing refused June 30, 1898.
   The opinion of the court was delivered by

Miller, J.

The plaintiffs, collateral heirs of Susan Robinson, a granddaughter of the late Oliver Beirne, sue his testamentary heirs, to establish the asserted rights of the plaintiffs in respect to that part of the immovable property in Louisiana alleged to have belonged to Mr. Beirne at the date of his death, and which he could not under our law dispose of to the prejudice of his children and their descendants, the plaintiffs claiming to have succeeded as heirs to the rights of Susan Robinson, the granddaughter and one of those our law made forced heirs of Mr. Beirne, living, at the date of his death, but since deceased.

The domicile of Mr. Beirne was West Virginia. He executed his last will in 1885 and died in 1888. He left surviving his daughter, Mrs. Von Ahlefeldt; the children of his predeceased daughter, the issue of her marriage with William Porcher Miles, and Susan Robinson, the child of another predeceased daughter. The will made some provision for Susan Robinson by directions respecting the West Virginia property of Mr. Beirne, but constituted as his residuary legatees his grandchildren, the issue of the marriage of his predeceased daughter with William Porcher Miles. A few days after the date of the will Mr. Beirne by authentic act executed in this city conveyed to Mrs. Von Ahlefeldt, his daughter, all his immovable property in Louisiana, consisting mainly of sugar plantations, aggregating a large value, the price stipulated being one million dollars, for which Mrs. Von Ahlefeldt made ten promissory notes of .equal amounts, two of which were payable annually from one to five years after their date.- A year later, that is in January, 1887, about the ■date of maturity of the one-year notes, Mr. Beirne gave written instructions to his testamentary executors in the form of a letter to them addressed, and which, with his will, came into their hands when he died, by which instructions the executors were to return to Mrs. Von Ahlefeldt all her notes on the execution of a conveyance by her to the Miles children of all the property conveyed to her by Mr. Beirne. At a later date, that is in January, 1888, it is charged Mr. Beirne acquired for himself, placing the legal title in Mrs. Von Ahlefeldt, another plantation in Louisiana. After Mr. Beirne’s death Mrs. Von Ahlefeldt conveyed to the Miles children, as contemplated in the testamentary letter of Mr. Beirne, all the property conveyed to her, as well as the Houmas plantation, the title of which was in her name. The consideration of this sale was stated to be the return to Mrs: Von Ahlefeldt of the ten notes she had executed and three hundred thousand dollars besides, but the petition charges that the three hundred thousand dollars represented no consideration given by the Miles children for the property, but consisted of the legacy to Mrs. Von Ahlefeldt of two hundred thousand dollars they owed her as residuary legatees of Mr. Beirne, and the other one hundred thousand dollars was for the relinquishment by Mrs. Von Ahlefeldt of her other rights as his forced heir, largely exceeding in value, the petition charges, one hundred thousand dollars. Subsequently, the Miles children, as residuary legatees, conveyed to the Miles Planting Company the sugar plantations, and to the Tulane Educational Pund the city property, all embraced in the sale to the Miles children by Mrs. Von Ahlefeldt.

The petition charges that the sale by Oliver Beirne to Mrs. Von Ahlefeldt was a simulation, as was the placing of the title to the Houmas plantation in her name, Mr. Beirne being the real purchaser and owner; that no price was ever paid by Mrs. Von Ahlefeldt; for the property sold her by Mr. Beirne, no possession ever passed to her, but that he, as owner, remained at all times in possession of all the Louisiana property, and that the whole purpose of the sale to Mrs. Von Ahlefeldt and placing in her name the Houmas purchase was to disguise and effect the testator’s intention to leave at his death the Louisiana property to the Miles children, constituted prior to the alleged fictitious sale, and prior to the Houmas purchase, his universal legatees. With respect to the conveyance by Mrs. Von Ahlefeldt to the Miles children, the petition substantially-charges that the conveyance for the return of her notes, and the additional consideration of paying her the legacy of two hundred thousand dollars owed' by the children, and for the relinquishment of her rights as forced heir of Mr. Beirne, was simply transmitting the property to the Miles children as residuary legatees and not as purchasers; that the Von Ahlefeldt sale was hence a fraudulent simulation, in so 'far as it purported to represent any ownership in Mrs. Von Ahlefeldt or conveyance of ownership by her, and that the residuary legatees, in their conveyances to the Miles Planting Company, admit the simulation of their purchase from Mrs. Von Ahlefeldt by describing the property as inherited by them from their deceased grandfather, Oliver Beirne. Thus, the petition in effect charges that all the immovable property in Louisiana, sold by Mr. Beirne to his daughter, Mrs. Yon Ahlefeldt, and that purchased by him and placed in her name, was owned by him when he died; that under the law he could not dispose of two-thirds of that property ; that Susan Robinson, as the child of his deceased daughter, became vested with title to one-third of the two-thirds, and that by the death of Susan Robinson, leaving no ascendants or descendants, plaintiffs inherit concurrently with her other collateral heirs five-sixths of her rights; the petition further charges that if, notwithstanding the allegation of fraudulent simulation, the acts attacked by the petition are deemed donations, embracing as they do all the immovable property of the testator in Louisiana, then the donations are void, because in excess of the disposable portion, one-third, the testator leaving at his death one daughter and the children of two deceased daughters; the petition further avers that as to that portion of the property left by the testator, conveyed by the residuary legatees to the Tulane Fund, inasmuch as a college has been built on the property by the purchasers, petitioners confine their demand to their portion of the price paid by the purchasers, but if that relief be denied, they reserve their right .as forced heirs to assert their demand for their share of the property, and as to the sugar plantations conveyed to the Miles Planting Company it is charged all are subject to plaintiffs’ rights. The relief asked is that the sale to Mrs. Von Ahlefeldt and her title to the Houmas plantation be decreed simulated, that all that property be adjudged that of •Oliver Beirne at the' time of his death; that the title of Susan Robinson to one-third of two-thirds of the property, and petitioners’ rights to five-sixths of two-ninths as her heirs be recognized; that there be decreed an accounting for revenues and all other necessary relief. The exceptions of no cause and no right of action and of prescription was sustained, and plaintiffs appeal.

Under our law the father leaving three children can dispose of but . one-third of his property, and grandchildren take the place of their ■ deceased parents. That portion of his property the testator can not dispose of to the prejudice of his children accrues to them at his death, and is called their “ legitime.” If by donations inter vivos the deceased has infringed on the legitime the law grants to the forced heirs the appropriate action to recover the property thus donated, or so much as is requisite to make up the legitime. If the legitime is encroached upon by the testamentary dispositions of the deceased, the Code gives the forced heir the requisite action against the legatees to preserve the legitime. C. C., Arts. 1493, 1494, 1495, 1504, 1517. Until the death of the parent the legitime has no existence. When death occurs, then the disposable portion is ascertained by adding to the property left by the deceased, the value at the time of the death of all the property donated by him, his debts are deducted and the disposable portion is adjudged by the proportion the number df his children then living bears to the residue. It results that donations inter vivos retain full effect during the life of the donor, and even after, unless attacked within the prescribed period by the forced heirs, their heirs or assigns. C. C., Arts. 1502, 1503, 1505, 3542.

As we appreciate the plaintiffs’ petition they sue to subject the Louisiana property left by Mr. Beirne,’to the demand for that portion of the legitime of Susan Robinson accruing to plaintiffs as her heirs. The result of all the allegations in the petition is, the import that by Mr. Beirne’s will in favor of the Miles children, followed by the nominal sale to his daughter, Mrs. Yon Ahlefeldt, and her conveyance to these children after his death in accordance with his request contained in the testamentary paper he left, all the Louisiana property has thus been transmitted to the Miles children, who in turn have conveyed to the Miles Planting Company, fully apprised, it is charged, that the conveyance embraced the legitime of Susan Robinson. The suit is directed against the Miles children as legatees, and necessarily against the Miles Company as holding the legitime on which plaintiffs assert their demand. It is manifest, the action is entirely distinct from the revocatory action, i. e. that of creditors to avoid the fraudulent contracts of their debtors, so much discussed at the bar. The Code describes a suit of this character as that of revendication ” to obtain the legitime oí the heir. Civil Code, Art. 1517. The case is presented on pleadings that admit all the allegations in the petition.

The legal questions are as to the effect on immovable property in Louisiana of Mr. Beirne’s will in favor of the Miles children to the exclusion of his grandchild, Susan Robinson: whether under our law such a conveyance as that by Mr. Beirne to Mrs. Von Ahlefeldt accompanied with the direction to convey to the heirs named in his will, and that accomplished as he had directed, and all this followed by the transfer by th.e Miles children to the Miles Planting Company, places the property beyond the demand for the legitime of the grandchild : the further question is, whether the plaintiffs, the collateral heirs of Mr. Beirne’s forced heir, are . clothed with her rights, and whether the suit can be maintained in the form it is brought and for the relief it seeks.

That the will of Mr. Beirne, in so far as it seeks to direct the disposition of immovable property in Louisiana, must conform to our law, in respect to forced heirship, needs but the statement. The argument that questions the plaintiffs’ rights as collateral heirs of Susan Robinson, might be deemed to come first, in order of discussion, but it will be more satisfactory to treat the question in connection with others arising in the case.

A large part of the discussion has been devoted to the nature of forced heirship. It has been insisted it creates no ownership, but gives only a right of action. In support of this it is urged that any donation by the owner is valid in his life and retains its force after his death, unless successfully assailed by his forced heirs. All this as to the force of the donation is to be accepted and results from the provisions of the Code. But in our view the character of the title of the forced heir to his legitime — i. e., that part of the property the owner leaving children can not dispose of to their prejudice, is to be determined not merely by the action the law gives the forced heir to recover the. legitime but by the provisions of the Code that confer the right the action enforces. That children can not be deprived by their parent of that portion of his estate the law “ reserves for them ” conveys the idea of ownership incident to the parent’s death, and an ownership supported by the action the Code gives when that death occurs, to be exerted against the legatees or heirs of the testator as well as against the third persons the donees of the testator, who may be in possession of the legitime. 0. 0., Arts. 1498, 1495, 1517. As one of the commentators puts it, it is not the mere right of heirship by which the heir succeeds to the legitime, “ mais la sienne propre,” and throughout the elaborate discussions of the French jurists, “ la réserve” or legitime is treated as accruing to the forced heir at the death of the parent as effectively as the death of the owner vests title to the property he leaves, in his heirs generally. The forced heir, too, consistently with his peculiar title of far superior nature to that of the ordinary heir, takes the legitime without liability that attaches to the ordinary heir for the debts of the deceased, nor does the legitime brought back to the succession by “ the effect of the revendication or reduction ” become subject to those debts. 2 Troplong, p. 292, par. 910 et seq.; 5 Toullier, p. 112 et seq.', C. N., Art. 921; Civil Code, Art. 1517. In the light of the Code itself, made clearer if that were possible, by that shed by the French commentators, it seems to us, not at all in accord with the law, to treat the legitime as vesting a mere right of action. That action is simply the correlative or “ la sanction de la réserve nait avec elle.” 2 Mourlon, p. 311.

Nor do we think the argument for the defendant more successful in the effort to withdraw the title to the legitime from the operation ■of that principle of our law that makes the death of the owner vest all his rights in the heirs. Civil Code, Arts. 940, 941, et seq. The application of this principle, le morb saisit le vif,” is made more distinct by the articles of the Code which deem the forced heir so completely seized of right of all the succession property as to require the legatees to demand of the forced heir the delivery of the legacies. C. C., Arts. 392, 893, et seq. It is contended the forced heir can not be deemed seized of right of the legitime when it is held by third persons and an action is necessary for its recovery. This argument is supposed to derive strength from the provisions of the Code that give to the donation exceeding the disposable portion full effect unless set aside by the action of the heirs; hence it is contended the forced heir can not be deemed seized — i. e., the owner of that property actually in the hands of those holding under titles from the owner to whose succession the heir is called. It seems to us the argument loses its apparent force when it is considered that the axiom of our law, “ le mort saisit le vif,” supposes, all property donated by the parent to the prejudice of the legitime to be returned to the succession of the deceased parent, when he dies, so as to form part of the property he leaves. C. C., Art. 1505. Thus the donee, when the donation exceeds the disposable portion, holds the legitime during the life of the donor by a title conveying no ownership in the ordinary sense, but by a tenure determinable by his death when by the operation of forced heirship the property is brought back to his succession, and brought back freed from any of his debts, and with the restoration of fruits from the date specified in the Code. C. C., Art. 1515. Hence all the French authorities treat the opening of the succession, i. e., the death of the deceased, as extending to and including the legitime; that is, by the death the legitime, though in the hands of the donee or of others to whom it may have been conveyed by the owner, is brought back and treated as part of the succession property. “ Bien qu’etablie pour des raisons d’ordres public, la reserve difiere point de la succession, or des que le droit hereditaire est ouvert par le deces du defunt il se transmet avec ce patrimoine de l’heritier et il peut etre exercé 'comme tout droit peeuniaire par les creanciers de l’heritier.” 12th Laurent, p. 185, par. 130; 2d Mourlon, pp. 311, 313; Boilleux, commenting on Art. 920, O. N. We think, therefore, the forced heir is seized of right of the legitime by the death of the parent, and the fact that the property composing the legitime is then in the hands of third persons is no obstacle to the vesting of the right of the forced heir. But whether or not forced heirship is ownership in its fullest sense, or whether the forced heir is or is not within the rule “ Le mort saisit le vif,” seems to us a discussion not at all calculated to aid the defendant’s ease. It is quite certain the right of action of the forced heir for his legitime, springs into existence with the death that calls the heir to the succession. That incontestible right of the forced heir of Mr. Beirne the plaintiff's seek to exercise, and that other question, whether the plaintiffs as collateral heirs of the forced heir are clothed with her rights, remains for examination.

The Oode declares that the reduction of the donation inter vivos or mortis ea/usa can be claimed “ only ” by the forced heir or by his heirs or assigns. “Only” emphasizes that the heirs of the forced heir can sue, and whether they sue the legatees to reduce the testamentary disposition in excess of the disposable portion, or to “revendicate” when the legitime is in the hands of the donee'or others holding under titles from the deceased, the suit of the forced heir is derived from the articles of the Oode that transmit the rights of the forced heir to his heirs. O. 0., Arts. 1504, 1517. Against the express language of the Oode it is insisted, that it is only the forced heir of the forced heir that the Oode intends shall have this right to sue. We are thus asked to weave into a clear, unequivocal, article of the Oode, as to those capable of exerting the action under discussion, a qualification surely not expressed nor implied, as we think, by any fair interpretation of language. In support of the argument our attention is directed to the foundation of the limitation of the parent’s power to dispose of his property; that is, the obligation of the parent to the child. It is hence contended the law restricts the- action to children and their descendants. This policy of the law is illustrated by the copious citations of authority in the discussion at the bar and furnished in the briefs. All the commentators announce that policy and it is carried out in the Code: “ En general chacuns peut disposer librement de ses biens, ne amoins la loi limite cette faculte en raison de 1’existence de certains heritiers qu’elle favorisse specialement. Ces heritiers sont les descendans et les descendans l’orsquil en existe.” 3d Boilleux, commenting on la portion disponible et de la reduction.” C. N., Art. 913. Undoubtedly the law refuses to the collateral heir of the donor any right to attack his dispositions of his property. The Code on this point is too clear to need any authority. If plaintiffs were suing as collateral heirs of Mr. Beirne they would be repelled by the text of the Code. It is insisted that'the same theory that denies the collateral heir of the donor any right to assail his dispositions inter vivos or mortis causa should exclude the collateral heir of the forced heir who goes to the grave without any such attack. But the question is whether the Code has carried out the polipy under consideration to the extent asserted in the argument. The forced heir of the donor, 'the Code declares, shall have the right to attack any of his dispositions that impair the heirs’ legitime. But the Code also declares that the heirs or assigns of the forced heir shall have the same right. Any argument against the action of the heirs of the forced heir, founded on policy, must be referred to the articles of the Code that enforce the policy with respect to the forced heir of the donor, but does not enforce the policy against the heir of the forced heir. If we are to give effect to the Code as it is written, the plaintiffs as the collateral heirs of the forced heir of Mr. Beirne are brought clearly within the scope of the article of the Code; that gives this action not only to his forced heir, but also to the heirs and assigns of the forced heir. It is urged, too, that collations can be demanded only by children and their descendants of the owner, to whose succession they are called. Civil Code, Arts. 1228, 1235. This is on the theory of equality among children. The analogy drawn from the articles of the Code on the subject of collations is also supposed to be fatal to the transmission of the action under discussion in this case to the heir of the forced heir. It is claimed, 0 o, that the statutory provision for the widow and children in necessitous circumstances, limited as it is to the persons named in the statute; the marital fourth, restricted as it is to the needy spouse, are all guides to the conclusion that the plaintiffs, as collateral heirs of Susan Robinson, do not succeed to her rights as the forced heir of Mr. Beirne. Arguments deduced from supposed analogies depend for their strength on the similitude of the subject supposed to furnish the analogy, with the subject to which it is proposed to apply the analogy that is asserted. It would not readily occur that our law respecting collations; or the provision for the surviving spouse left in distress; or that the widow and children of the insolvent husband, could afford any aid whatever in solving the question here, whether the action of the forced heir for his legitime passes to his hrir. With due consideration of this line of authority resting on supposed analogies, we have been unable to find the least restriction or qualification of the explicit article of the Oode that the rights of the forced heir passes to his heirs. If we are to go beyond the Oode, we have the same instruction. The article of the Napoleon Oode similár to that of our Oode on this subject is restricted to donations inter vivos. The right of the forced heir to claim the reductions of donations mortis causa was deemed too clear to require any express provision; such donations in excess of the disposable portion were left to that adjustment, incidental to the application of the property left by the deceased to the payment of his debts, including the legitime of the forced heir. The Napoleon Oode gives the action to reduce the donations inter vivos, and to revendicate when the legitime is in the hands of the donee or others claiming under titles of the deceased, to the forced heir and to his heirs and ‘ayants cause,” creditors being included under this last term. 0. N., Art. 921, 930. Our Oode discarded this last term which included creditors, preserving the more restrictive word “assigns” and recognizing the right of action of the heirs of the forced heir. In the discussions of the French jurists, unless it has eluded our research, there is not the trace of any question that the right of the forced heir for the recovery or preservation of his legitime, passes to his heirs without qualification of any kind. The passage from Laurent, already cited, epitomizes the concurrence of the French commentators on his subject. 12th Laurent, p. 185; 2d Mourlon, p. 811, 313; 3d Marcadé, p. 472. It seems to us the conclusion is irresistible that whether tested by the Oode sufficiently clear, or by the jurisprudence of France, that the right of action the plaintiff's exercise in this case passed-to them as the collateral heirs of Susan Robinson.

It is claimed on behalf of the defendants that the petition is inconsistent in its allegations, as well as in its prayer for relief. It is urged that the attack on the conveyance to Mrs. Von Ahlefeldt as fraudulent, treats it as serious, and the prayer that the conveyance be annulled is also inconsistent with the other allegations of the ¡simulation of the conveyance. The averments that no price was paid by Mrs. Von Ahlefeldt, that no possession passed to her; that ownership with all the control that ownership gives was exerted by Mr. Beirne at all times while he lived, convey in the most expressive terms the simulation of the conveyance. It does not occur to us that the import of these allegations is changed because of the word used by the pleader to designate the motive of Mr. Beirne, nor that the simulation, so distinctly alleged, disappears because of the prayer that the conveyance be annulled. It is further insisted that the defendants were entitled to be apprised whether the conveyance was assailed as.a simulation, and if that be the view of the petition, the suit can not be maintained because there is no averment that the conveyance, if simulated, if available as a donation, exceeded the disposable portion. Our jurisprudence was that the heir could not assail the dispositions of property by the donor to whose succession the heir was called, unless the dispositions exceed the disposable portion, was changed by the Act No. 5 of 1884. Irrespective of any encroachment on the legitime, that act confers on the heir the right to attack any simulated sale by which the owner, to whose rights the heir succeeds, has sought to dispose of his property. Rachal vs. Rachal, 4 An., p. 501; Croizet vs. Gaudet, 6 Martin, O. S., p. 529; Hopkins vs. Buck, 5 An., p. 487. Moreover, under the charge that the conveyances to and by Mrs. Von Ahlefeldt emoraced all the immovable property of Mr. Beirne in Louisiana, it seems to us the prejudice to the legitime of the grandchild attempted by those conveyances is substantially averred. We think, too, that the plaintiffs under the allegations in the petition were entitled to ask the alternative relief that if the conveyance to Mrs. Von Ahlefeldt should be deemed a donation, that it be annulled to the extent it exceeded the disposable portion. It is also argued on behalf of the defendants that the prayer of the petition that the transfers by Mrs. Von Ahlefeldt and that by the Miles children to the Planting Company be annulled in so far as these conveyances impair-plaintiffs’ rights supports the objection to the action. If, however, the suit is viewed as that of the heir to recover the . legitime, the fair import of the petition, the avoidance of the transfers of Mrs. Von Ahlefeldt and that to the Miles Company to the extent sought by the petition are to be deemed the necessary incidents of the relief afforded by the law. Inasmuch, too, as the transfers to the Miles Company passed the interest of Mr. Beirne’s heirs, parties to that conveyance, to ask, as the petition does, that the transfer be annulled only so far as it seeks to impair the plaintiffs’ rights, is entirely consistent with the measure and limit of the relief to which they are entitled. It is claimed the Miles children are to be treated as purchasers from Mrs. Von Ahlefeldt. Under the allegations of the petition admitted by the exceptions there was no price paid by the children; the three hundred thousand dollars stipulated was the amount of the legacy due to Mrs. Von Ahlefeldt and for the surrender of her rights as an heir. The whole purpose of the purchase, the petition charges, was to accomplish Mr. Beirne’s purpose to dispose of all his Louisiana property so as to make the Miles children the beneficiaries. The petition treats the purchase as fictitious, known to all the parties. In that view the purchase interposes no obstacle to this suit. Again, if the conveyance by Mr.Beirne was fictitious, embracing the legitime as charged in the petition, neither that conveyance, or that by which Mrs. Von Ahlefeldt transferred to the children, whatever consideration they might have given their co-heir, Mrs. Von Ahlefeldt, no portion of it accruing to the grandchild or her heirs could affect the plaintiff’s rights, if we are to give due effect to the allegations of the petition. Mrs. Von Ahlefeldt, as the ease is presented on the pleadings, acquired no title and could convey none to the legitime of the grandchild. Nor in our view do the Miles Company, acquiring with full knowledge, the petition charges, of the rights of the grandchild, stand in any better position than their vendors. It is our conclusion the petition in its allega-, tions and the relief it seeks, is consistent with the suit the law gives to asset the legitime of the forced heir when it is held at the owner’s death, by titles from him, which the law does not make effective against his forced heir or against the heirs of the forced heir.

We have given due attention to the argument that the plaintiffs are estopped from disputing the title of the Miles children because of the qualified demand of the plaintiffs in respect to that portion of Mr. Beirne’s property conveyed to Mrs. Von Ahlefeldt, by her to the Miles children, and by them to the Tulane fund. We understand the plaintiffs’ position in this respect defined in their petition to be: they are entitled to their share of the property, but as it has been sold to an educational institution and a college has been erected on the ground, that plaintiffs will take their proportion of the price if practicable, otherwise they claim their portion of the property itself. This it is claimed is a recognition of the title of the Miles children. Claiming the price without qualification would be a ratification of t.he sale to the Tulane fund; but the conditional claim is, in our view, no ratification of that sale, and, least of all, none as to the other property held by the Miles Planting Company.

The pleas of prescription are met by the allegations of the insanity of the grandchild; and if these allegations are true there was a suspension of prescription. This issue, therefore, with the others, must be tried.

We have taken this controversy, as we are bound to do, on the assumption of the truth of the allegations in the petition. On the allegations we think plaintiffs are entitled to be heard. In our view the petition shows a right of action in plaintiffs and a cause of action, if there is a distinction between the cause and the right, as the exceptions imply.

It is therefore ordered, adjudged aud decreed that the judgment of the lower court be avoided and reversed, that the defendants’ exceptions be overruled and that the suit proceed to trial on the merits.

Breaux, J., concurs in the decree.

Rehearing refused June 80, 1898.


source: Caselaw Access Project

author: Milleb, J.

license: Public Domain

text:
    No. 12,686.
    Metropolitan Bank vs. Emile Muller et als.
    When the promissory note to tlie maker’s order is transferred by him to his creditor with the names of parties placed on che back of the note while in the maker’s hands, the holder acquiring with full knowledge that the names of such parties were thus placed on the note for the accommodation of the maker, they will be regarded as sureties for the maker, and not as endorsers in the sense of the law merchant. Story on Promissory Notes, Secs. 133, 13d, 188; 1 Randolph Negotiable Paper, 829, 831, 832 and 83d; d Rob. 161; 10 La. 87d; d An. 273; 95 U. S, 90, and line of decisions in the Digest; 1 Hennen, p. 172, No. 1.

      2- As sureties of several for the samedebt, defendautsprimarily liable in solido are entitled to a division of the debt so as each shall respond for his share or part of the debt, unless they have renounced the benefit of division, and on being sued demand such division. C. C., Arts. 3049, 3050; 4 Au. 273; 9 An. 423; 12 An. 630.
    ON APPEAL from the Civil District Court for the parish of Orleans. Ellis, J.

      Dinkelspiel & Hart for Plaintiff, Appellee.

      Harry H. Hall, E. E. Moise, Buck, Walshe & Buck, Carroll & Carroll,- Theodore G. Spitzfaden, J. B. Rosser, Jr., for Defendants, Appellants. ■
    Argued and snhmitted November 9, 1898.
    Opinion handed down December 5, 1898.
   The opinion of the Court was delivered by.

Milleb, J.

This appeal is by six defendants, sued as endorsers of a promissory note. The defence is, omitting exceptions not insisted upon, that the defendants are sureties, liable each only for his virile share, and the answers insist the plaintiff’s demand be restricted to the portion of each defendant, i. e., one-sixth of the debt. The petition claimed judgment against defendants in solido, the judgment ■in solido was rendered, and the appeal presents the single question of the character of the obligation incurred by defendants in placing their names on the back of the paper sued upon.

We have in the record the agreed statement that at one and the same time, the note sued on was made by the Brewing Association to its own order, by it endorsed, endorsed also by the six defendants; that it was thus endorsed for the accommodation of the maker, and by the maker with the ‘names of defendants upon it, was delivered to the plaintiff, acquiring with full knowledge of all the facts incorporated in this agreed statement.

The argument for the defendants that they are to be viewed as joint endorsers, hence only liable jointly, is based upon decisions arising on promissory notes made by two or more parties to their own order, expressing no obligation in solido, and hence creating a joint; liability not changed by the endorsement of the makers. Chadwick vs. Waters, 3 Martin N. S., 437; Baggett vs. Rightor, 4 R. 18; Mayor, etc., of New Orleans vs. Ripley et als., 5 La. 122; 1 Hennen’s Digest, p. 177, No. 4. This line of decisions does not, in our view, furnish the solution of the question here of the liability, not of a note of joint makers who endorse it, but of the liability of parties not makers or payees, but who place their names on the-back of negotiable paper, while in the hands of the maker, who hands it to his creditor acquiring with full knowledge of all the facts.

The endorser under the commercial law is the payee, who, acquiring from the maker, endorses the note to convey title to another* the endorsee, and the endorsee becomes endorser when he, in turn, places his name on the note to transfer it. This is the general rule, though there are cases in which the party is deemed an endorser merely, because his name is on commercial paper after that of the payee. It is obvious, however, that the parties, defendants here, who put their names on the back of the paper while in the hands of the maker, who thereupon handed it to his creditor, the plaintiff, the holders acquiring the paper with knowledge of all the facts, are not endorsers under the law merchant. Their endorsements belong to the class known as irregular endorsements. In the jurisprudence of some of the States they would be deemed joint makers. Our own courts, dealing with these irregular endorsements given under circumstances falling within the principle of the decisions of our courts, have held the endorsers are to be treated as sureties. 1 Randolph on Promissory Notes, Sec. 66; Story on Promissory Notes, Secs. 133 et seq.; Gilbert vs. Cooper, 4 R. 161; Smith vs. Gorton, 10 La. 374; Goos vs. Martin, 95 U. S. 90, and line of decisions collated in 1st Hennen’s Digest, p. 172, No. 1. We understand the plaintiff places the liability of the defendants on the footing of sureties* recognized by our own, and in our view, by the general jurisprudence.

If these defendants are to be deemed sureties for the Brewing Association they are eutitled to the rights arising out of their contract. The Code declares that several persons who become sureties for the same debt are liable in solido, but they have the right of being sued to demand that the creditor shall reduce his demand to the share or portion of each of the sureties. This right of division is excluded only when the sureties have renounced it, or when one or more of the sureties are insolvent, and their insolvency has occurred before the division of the debt has been demanded by the other sureties. Civil Code, Arts. 3049, 3050; McCausland vs. Lyons, 4 An. 273; Gordon vs. Succession of Diggs, 9 An. 422; Rawlins, Duncan & Co. vs. Barham, 12 An. 630. In this case there is no renunciation by the sureties of the benefit of division, nor is there any issue of the insolvency of any of them. The right of division is wholly distinct from the exception of discussion to which reference is made in the plaintiff’s argument. To preserve the benefit of division, it suffices, in our opinion, that on being sued the sureties demand that division. To exact more is to go beyond the requirement of the Code. We find in each of the answers of the defendants the demand that the plaintiff be restricted in his recovery to the virile share of the defendants. In the ease from 4th Annual we cite, the suit was on a promissory note against two parties deemed to be irregular endorsers, and hence sureties. The court in that case epitomized the law thus: Sureties for the same debt are liable in solido, but that solidarity ceases when, being sued, the sureties claimed the division of the debt. It was solidarity tempered with this right of division. The right was in facúltate, as the court expressed it, and was to be allowed whenever the sureties chose to claim it. In that case the sureties made no such demand except in argument, and, as a consequence,, lost the right. Here, the division is claimed, and under the imperative requirement of the law must be allowed.

It is therefore ordered, adjudged and decreed that the judgment-of the lower court be and it is hereby avoided and reversed, and it is now adjudged and decreed that each of the defendants, E. Muller, Peter Blaise, Theodore Brunner, Joseph D. Taylor, E. F. Hoppe and Charles J. Babst, do pay plaintiff one-sixth of the amount of the note sued upon, with interest on said one-sixth as stipulated in the note, and that plaintiff pay costs.

Ntcholls, C. J., and Breaux, J., dissent.


author: Watkins, J. Blanchard, J.

text:
    No. 12,732.
    Robinson Mineral Spring Co., Limited, vs. Louis P. DeBautte.
    All the stockholders of a corporation haying executed a full, complete and per-fact act of ratification of an adjudication at public auction, same relieves the-sale of any and all the alleged illegalities in the proceedings leading up to> same, such as want of authority in the board of directors to direct a sale to be made, and that the adjudication was ata price less than a stockholders’ meeting had previously authorized to be accepted therefor.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Ernest T. Florance for Plaintiff, Appellant.

      G. V. Soniat and E. Howard MeCaleb for Defendant, Appellee.
    Argued and submitted April 21, 1898.
    Opinion handed down June 22, 1898.
    Judgment amended and rehearing refused June 30, 1898.
   On Motion to Dismiss Appeal.

The opinion of the court was delivered by

Watkins, J.

The motion is based upon several grounds.

1. That the appeal is premature.

The appeal is prosecuted from a final and definitive judgment which rejects the plaintiff’s demand from which he is appellant.

It appears that in the lower court, the auctioneer who sold the property in controversy took some proceedings looking to the deposit in the possession of the clerk of court of the sum of four hundred and fifty dollars; but that proceeding was not initiated until some days after the date- of the judgment, and the appeal had been taken.

We can not perceive in what way these proceedings affect or prevent the party already cast from appealing from the judgment which had been already rendered against him.

2. That certain documents are missing from the transcript.

But the motion fails to state, that said papers had been filed in the suit prior to the rendition of judgment, or that their non-production is attributable to the appellant in any way.

Failing in this, mover shows no cause for complaint.

3. That the plaintiff applied for and obtained a previous order of appeal which it failed to perfect and prosecute.

The present appeal was taken in exact keeping with our opinion in State xe rel. Minerai Springs Co. vs. Jndge, 49 An. 1527.

The motion to dismiss is denied.

On the Merits.

This suit has for its object to compel the defendant to accept title to the property described in the petition of plaintiff, and comply with the terms of the adjudication by paying his bid of four thousand five hundred dollars, with interest.

On the trial there was judgment in favor of the defendant rejecting the plaintiff’s demands, and from that judgment he has appealed.

In limine, the defendant tendered several exceptions, viz.:

1. The court was without jurisdiction because the property in ■dispute is situated in the State of Mississippi.

2. That the charter of the plaintiff, a Mississippi corporation, does not authorize the board of directors to sell, transfer or assign the land’s in controversy; nor to prosecute a suit which has for its object the alienation of realty..

These exceptions were by the judge a quo referred to the merits "to stand as part of the defendant’s answer.

The theory of plaintiff’s suit is, that on the 6th day of May, 1896, there was sold at public outcry, by an auctioneer of the city of New Orleans, a certain described tract of land situated, in the county of Madison, State of Mississippi, containing two hundred acres more or less, less certain reservations mentioned and described, and that at said offering same was adjudicated to the defendant for the sum of iour thousand five hundred dollars, and same was evidenced by a proees verbal which bears date June 27, 1896.

That on the 30th of June, 1896, the plaintiff made a formal tender of an act of sale, but that the defendant refused and declined to accept the same or to pay the price of adjudication.

Plaintiff corporation shows that the defendant and adjudicatee was at the date of said adjudication and for some time thereafter -the president of the corporation, and, as such, personally cognizant of all the affairs of the company; and that he knew of the causes and reasons which led up to said sale, and was, as president, charged with the duty of consummating and carrying same into effect.

That it, in accordance with the expressed wish of the defendant, obtained and annexed to the title tendered to him, “ the written consent and ratification of all the stockholders .of the corporation, and of all parties in any wise interested directly or indirectly in said property.”

That the defendant refuses to accept title for certain insufficient reasons and causes of which he was well aware at the time of the adjudication “and which he, as president of such corporation, is estopped to deny, as same were known to him, or to assert same in his own behalf.”

The defendant in answer avers, that, at the time of the adjudication, he was of the impression that the title to the property “ was registered in the name of the corporation, which was found on investigation not to be a fact;” and that he found the title to same to be “ defective and cloudy” for the following reasons, viz.:

1. That the charter of the corporation does not authorise the Board of Directors to sell said property, and hence the act of the board in so doing was ultra vires.

That a meeting of the stockholders authorized a sale for not less than ten thousand dollars, and that figure was not subsequently changed.

2. That the land being situated in the State of Mississippi and not having been registered in the name of the corporation, but left standing in the names of the individual corporators, ths corporation could not legally convey same.

3. That upon ascertaining these facts he demanded a ratification of the title by all the stockholders in whose name the property stood before be would sign and complete the same, and that same should be done prior to the 22d of June, 1896, and that failing in this the sale would be canceled.

And that the corporation failed to procure the ratification of all the stockholders, and that hence his obligation to accept the title was at an end.

It conspicuously appears from the foregoing that the defendant was president of the plaintiff corporation at the time of the adjudication before and since — until the month of October subsequent thereto; and, on that account, is conclusively presumed to know the terms and stipulations of its charter, and to possess full and accurate information of the title to its property.

As president, he was, necessarily, charged with the duty of superintending and caring for the interests and well-being of the general ■stockholders.

The corporation having acquired the ownership of a valuable piece of real estate and taken title thereto, the president necessarily possessed knowledged of same without the title having been formally recorded.

The points on which the defendant’s counsel rely are (1) that the charter of the corporation did not authorize the board of directors to sell its property under any circumstances; (2) that a meeting of the stockholders authorized a sale for ten thousand dollars and nothing less; (3) that the title being originally in the names of the original corporators, and their title to the corporation not having been recorded prior to the adjudication, the conveyance tendered is a questionable one; (4) that the title tendered to the defendant as ■adjudicatee was not subsequently ratified by all the stockholders.

Whether the charter of the corporation authorized the directors to make the sale or not is of no consequence, as it is specially admitted that the stockholders bad authorized the sale, albeit for a price in excess of the amount for which it was adjudicated to the defendant.

It is of no consequence that the title of the corporation to the property sold had not been formally registered at the date of the adjudication—

(1) For the reason that same was a purely formal act which could be performed subsequently, and thus make the adjudicatee perfectly secure.

(2) The want of registry does not go to the validity of the conveyance, or create a cloud over the title, unless and until some adverse right has been intermediately acquired thereupon to the prejudice of the adjudicatee.

This state of facts is neither alleged nor shown.

But if all these things be as claimed for them by the defendant’s counsel, same are cured perfectly and completely by the subsequent ratification of the stockholders.

And the plaintiff in his petition claims that the corporation procured and produced a full and complete ratification of the sale and adjudication to the defendant for the sum and price of four thousand five hundred dollars, and that same was annexed to and made part of the act of sale which was tendered to the adjudicatee.

The pertinent facts which are necessary to be considered are, that in 1898 a number of gentlemen residing in the city of New Orleans formed a syndicate for the purpose of purchasing the property known as the Robinson Mineral Springs In the State of Mississippi.

Their names are:

George Q. Wliitney................................................................................................ $1,000

I. L. Lyons & Oo.................................................................................................... 1,000

H. R. Gogreve.......................................................................................................... 1,000

Isidore Hernsheim............................................................................................. 1,000

W. W. Me Whan..................................................................................................... 1,000

E. T. Shepard.............. 1,000

Pearl Wight................................................................................................... 1,000

L. P. De Bautte................................................................................................... 1,000

Fred. G. Ernst...................................................................................................... 1,000

Chas. Scheeneek.................................................................................................... 500

C. O. Wilcox........................................................................................................ 500

All of them except Charles Scheeneek paid in the amount of money placed opposite to their respective names, and W. E. Lawrence took his place.

L. E. Lyons, acting as the agent or trustee of the syndicate, purchased the property in dispute, and thereupon the plaintiff corporation was organized and the defendant was chosen president.

In June, 1893, this property was purchased by the corporation in pursuance of a resolution which was adopted at a meeting of all the stockholders.

Soon afterward George Q. Whitney transferred his interest to Herman Roehl, and same was formally recognized by the company.

Of all these facts and transactions the defendant as president had full knowledge; and this fact is evidenced by the minutes kept by the corporation.

He had then full knowledge of the withdrawal of both Scheeneek and Whitney, because he had issued to new holders the pro rata of stock which had been allotted to them in consideration of the assignment of their respective interests in the aforesaid property.

From the 30th of May, 1893, to the 29th of October, 1896, the defendant was continuously president of the corporation — he becoming adjudicatee on the 6th of May, 1896, of the aforesaid property.

Notwithstanding it was the duty of the defendant, as president, to have had the title of the corporation recorded, he failed and neglected to do so; and, during a period of three years, he caused the corporation to be advertised as the owner, to place its goods on sale as owner, and as owner, to actually expend all of its available resources and contract an indebtedness of one thousand seven hnndred dollars beyond its means.

And finding the corporation .placed in the impossibility of paying off this debt, the president inaugurated the proceedings necessary to effect a sale of said property in order to satisfy same, and appeared on the day of sale and bid it in for the sum of four thousand five hundred dollars; and when a title is tendered him, he declines compliance with the terms of the adjudication upon the technical grounds, which he either created, or is directly and immediately responsible for as the president of the corporation.

Every stockholder was duly notified of the resolution of the Board of Directors to sell, by a registered letter, and the receipt of each one of them is produced in evidence; and with this evidence, and having received no protest from any director, the company proceeded with the sale.

The defendant having raised the foregoing objections after the auction sale, a formal written ratification by every one of the stockholders was procured and same was annexed to and made a part of the title which was tendered to the adjudicatee.

That is to say, every single stockholder with the exception of Whitney and Scheeneek, but including Lawrence and Roehl, who had three years previously, and to the full knowledge of the defendant and adjudicatee, been substituted in their respective places.

In our opinion, the ratification was full, perfect and complete, and it cured all the suggested defects in the proceedings.

The judgment must be reversed and the defendant adjudged to accept title and complete the adjudication by paying the price.

It is therefore ordered and decreed that the judgment appealed from be annulled and reversed; and it is further ordered and decreed that there be judgment in favor of the plaintiff, and compelling and requiring the defendant to accept the title tendered to him and complete the adjudication by paying the price and all costs of both courts.

On Application for Rehearing.

Blanchard, J.

The contention is that the court omitted to consider the exceptions of want of jurisdiction and no cause of action. These were filed by defendant in limine and after argument thereon were ordered by the trial judge to be referred to the merits. Whereupon defendant, reserving the benefit of his exceptions, filed his answer.

The exceptions appear not to have been specifically passed upon by the court below. Its general judgment was in favor of defendants, apparently on the merits, rejecting the demands of plaintiff, and this appealed ensued.

This court, considering also the case on its merits, reached the conclusion the judgment was erroneous and decreed its reversal.

Defendant, in this application, reiterates its plea to the jurisdiction and contends that this being a suit for the specific performance of a contract of sale of land situated in another State, the courts of Louisiana are without jurisdiction to compel defendant to accept title and to pay the purchase price.

There is no force in this contention.

When a party domiciled in this State purchases in this State from another, also in this State, property located in another State, he can be sued here in the court of his domicile, which has jurisdiction to compel compliance by order or decree acting directly on the person of such purchaser, and held to pay the price which he contracted to pay. Seixas vs. King, 39 La. Ann. 512; Hayden vs. Yale & Bowling, 45 La. Ann. 362.

This is a suit for the price with tender of title. The situs of the property does not affect the completeness of the contract of sale, nor the liability to pay the price therefor.

The court had jurisdiction.

It is further contended that an obligor will not be compelled to specifically comply with his contract where the obligee can obtain redress by a suit for damages for non-performance, and for this reason no cause of action herein is shown.

Numerous decisions of this court in the past attest beyond controversy the right of action by a vendor against his vendee to compel compliance with the terms of a sale agreed upon, or with those of an adjudication made at public auction.

By the codal provisions of the law the obligations of a buyer are to pay the price of sale and to receive delivery of the thing sold. O. 0. 2549.

And on failure of the buyer to pay the price, the seller may compel him to do it by offering to deliver the thing to him. O. O. 2551.

That is the present case. Defendant is tendered the title and is sued for the price of the sale.

There is no foundation for the exception of no cause of action.

On the merits our conclusion is that no reason exists for changing the judgment heretofore rendered by this court, so far as same holds the defendant liable.

The plaintiff flies a petition in the nature of an application for rehearing, asking that the decree herein be amended by directing payment of interest by defendant at the rate of live per cent, per annum on the amount of the purchase price from the date of adjudication, which was May 6, 1896.

The original petition asks for interest only from June 30, 1896, the ■date of the tender of title. Interest should be allowed from that time, and the decree will be corrected accordingly.

For the reasons assigned it is ordered that a rehearing be refused, and, amending our former decree, it is now adjudged and decreed that the judgment appealed from be annulled and reversed, and that there be judgment in favor of the plaintiff ordering and compelling defendant to accept the title of the property tendered him on the •30th of June, A. D. 1896, and condemning him to pay to plaintiff the sum of four thousand five hundred dollars, the price thereof, together with legal interest thereon from said 30th of June, A. D. 1896, until paid, and costs of both courts.


author: Blanchard, J. Nicholls, O. J. Breaux, J.

text:
    12,741.
    Germania Savings Bank of New Orleans vs. David Lemley.
    On appeal from an order of seizure and sale the legality of the order alone can be inquired into. If the notice, or three days demand of payment, be defective, either in substance or in the manner of its service, it may afford ground for injunction', or other relief in the court below, but can not be the subject of appeal.
    Where an act of mortgage authorizes the mortgagee to take out insurance in case the mortgagor fails to dó so, and stipulates that the premiums paid up to a certain sum shall be considered covered by the mortgage, such premiums, within the limit, may properly be included in the order for executory process as an incidental expense, upon production of the receipt, or an affidavit showing payment thereof by the mortgagee.
    A PPEAL from the Civil District Court for the Parish of Orleans. *' Ellis, J.

      Buck, Walshe & Buck for Plaintiff, Appellee.

      Earroll & Carroll for Defendant, Appellant.

      Argued and submitted April 22, 1898.
    Opinion handed down May 16, 1898.
    Rehearing refused June 30, 1898.
   The opinion of the court was delivered by

Blanchard, J.

From an order of seizure and sale defendant prosecutes this devolutive appeal and files an assignment of errors, but inasmuch as only two of the errors complained of are argued in the brief, we assume the others are abandoned.

It is urged that the order and writ are void: (1) because there is a fatal defect in the demand; (2) because executory process issued on the claim for insurance premiums, as well as for the amount of the note, interest and costs, whereas there was no- authentic evidence establishing the claim for such premiums.

The first may be disposed of briefly. On an appeal from an order of seizure and sale the legality of the order alone can be inquired into. If the notice, or three days demand of payment, required to be served upon the debtor, be defective or irregular, or insufficient, either in substance or in the manner of its service, it may afford ground for injunction, or other relief in the court below, but can not be the subject of an appeal. Romain vs. Denny, 17 La. Ann. 127; Dodd vs. Crain, 6 R. (La.) 60; Fazende vs. Flood, 24 La. Ann. 425.

. As to the second, that no authentic evidence was produced that the debtor owed for insurance premiums, these facts appear from the record: A note for seven thousand dollars was executed, a mortgage securing this note was passed in authentic form, this mortgage imports confession of judgment, contains the pact de non alienando, authorizes by its terms executory process, stipulates that-the buildings on the lots mortgaged are to be kept insured by the mortgagor for an amount equal to the debt, and that if the mortgagor neglects or refuses to do this, the mortgagee is authorized to do so at the expense of the former.

It is stated that the mortgagee may, upon the default of the mortgagor, effect this insurance at a rate of premium not to exceed two per cent. “ at the cost, charge and expense of said mortgagor,” and following this is the declaration in the mortgage of confession of judgment for the full amount of the note with interest and “all costs, charges and expenses whatsoever.”

Clearly, the insurance premiums were intended to be classed gs “ charges and expenses ” incidental to the main indebtedness, and judgment therefor, up to two per cent, on seven thousand dollars, was confessed by the debtor in favor of the creditor, who was authorized to effect the insurance and pay the premiums.

The mortgage, in express terms, declares that it is intended to cover and does cover the reimbursement and payment of all expenses, such as attorney’s fees, protest fees, costs, charges and insurance premiums.

The debtor failed to insure the buildings and the creditor did so, paying a premium of one hundred and six dollars and fifty-five cents, less than the two per cent, authorized in the act of mortgage.

When the debtor defaulted in the payment of the note at maturity, executory process was sued out and along with the petition was presented the note, a certified copy of the mortgage and the affidavit of the creditor of the fact of payment of one hundred and six dollars and fifty-five cents as insurance premium. The order issued, covering by its terms the note, interest, premium, attorney’s fees and costs.

The act of mortgage furnished authentic evidence justifying the inclusion of all these items of indebtedness in the order and writ.

It supplied authentic evidence of the right (0. P. 782) to collect insurance premiums to the extent named in the act, upon production of receipts, or an affidavit, showing payment thereof by the creditor.

The fallacy of the contrary argument lies in considering the unauthentic receipts, or affidavit of payment, the basis of the right to regard such payment as part and parcel of the mortgage, whereas the real basis is the stipulation to that effect in the mortgage itself, on a matter to be regarded as an expense or charge incidental to the main demand, or the principal indebtedness represented by the note.

The case of Cumming vs. Archinard, 1 La. Ann. 279, cited by appellant, differs from the ease at bar. There the plaintiff took an order of seizure and sale for more than was due in this, the decree allowed interest for a longer time than was stipulated in the note and mortgage. It was for a few days only, it is true, and the difference amounted to but three dollars and fifty-six cents. But because it was for more than was actually due the court set aside the order on appeal and immediately granted in lieu thereof another for the correct amount.

Here it is not pretended that the decree issued for more than was due. There is no contention that the insurance premiums are not due and had not been paid by the mortgagee.

In Fazende vs. Flood, 24 La. Ann. 425, the courb held that cost of protest was an expense incident bo the collection of the note and could be recovered as part of the costs in the executory proceedings, though no authentic evidence was produced of either the cosb of the protest, or of its payment. None was thought necessary, and the decree, which included such cost, was sustained.

In Pele vs. Meaux, 17 La. Ann. 60, cited by appellant, it was said that the stipulation in the mortgage relative to insurance premiums was a mere incident to the contract. In that case no amount was mentioned in the act of mortgage as covering or intended to cover such premiums, and nothing appeared as to the cost of the protest of the note. The courb, saying “ there is no evidence authentic, or of any kind, respecting these claims,” and we find nothing in the record to establish the amount of these two items,” amended the decree so as to exclude the same. The instant case differs, for here the mortgage does fix an amount for the insurance premiums, which may be paid by the mortgagee on the default of the mortgagor, and there does appear in the record the affidavit of the mortgagee of payment of premiums for a sum within that stipulated for such purpose in the mortgage.

This brings the case precisely within the rule laid down in Grunewald vs. Manufacturing Co., 49 La. Ann. 489, where it was held that “insurance premiums may also be included in the order (of seizure and sale) when the amount is not in excess of that allowed in the act.” ,

This debtor comes with bad grace before the court complaining that the decree includes an insurance premium, when he undertook in the mortgage act to keep the property insured for the benefit of the mortgagee and agreed that if he did not do so the mortgagee may, and that the premiums paid by the latter should be covered by the mortgage. He failed to,insure; the creditor was compelled to do so, and obtained insurance at a percentage less than that authorized in the mortgage.

The appellee asks damages for frivolous appeal, but as the question herein discussed may not, perhaps, fairly be considered as heretofore settled by decisions of the court, we deem it proper not to allow such damages.

Judgment affirmed.

His Honor, the Chief Justice, and Mr. Justice Breaux concur in the decree as regards the amount of the mortgage and interest, but with reference to the premiums of insurance, they dissent from the majority of the court.for reasons assigned in their separate opinions this day handed down.

Separate Opinion.

Nicholls, O. J.

Though the premiums of insurance if paid by the creditor might be secured by mortgage, when the fact of such payment and the amount thereof would be established, yet being matters in pais, under the terms of this mortgage, they should not have been included in the order of seizure, though payable out of the proceeds of a sale to be made under the executory proceedings. The fact that they were included in the order did not invalidate the whole order of seizure. It might have been enjoined to that extent. No suspensive appeal having been taken from the order, and the sale having taken place without opposition, the question as presented has now no special significance.

Breaux, J.

I concur in the decree to the amount of the mortgage and interest.

With reference to the amount of insurance, I do not think it is covered by the mortgage so as to authorize the writ of seizure and sale; although it is due and should be paid from remaining proceeds of the sale.


author: Blanchard, J.

text:
    No. 12,756.
    Joseph Solomon vs. Edwin S. Gardiner et al.
    All testimony offered by defendant in support of his plea in reeonvention having been ruled out, the jury should have been instructed there was no evidence before them touching such demand, and that as to same they should return a verdict as of non-suit.
    The verdict having been silent as to such demand in reeonvention, it was error on part of the trial judge to incorporate in the final judgment drawn up and signed by him a decree rejecting it. There should have been dismissal as in case of non suit merely.
    Where the averments of an answer and plea in reeonvention sufficiently show that the violation of the contract complained of was an active one, no formal putting in default was necessary.
    The averments of the reconventional demand, in respect of the damages claimed, held to be sufficiently definite and precise to admit evidence in support thereof. Error in its exclusion.
    A PPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Hinkelspiel & Hart for Plaintiff, Appellee.

      Edwin T. Merrick for Defendant, Appellant.
    Argued and submitted May 19, 1898.
    Opinion handed down May 30, 1898.
    Rehearing refused June 28, 1898.
   The opinion of the court was delivered by

Blanchard, J.

Plaintiff sues upon a promissory note for seventeen hundred and seventy-seven dollars and fifteen cents, which defendant Gardiner had drawn payable to order of himself and by him endorsed, and which the other defendant, Peter Doerr,- had also endorsed. Judgment was asked in solido against them.

Plaintiff was, or had been, a member of the commercial firm of Joseph Solomon & Co., of Chicago, engaged in the business of the manufacture and sale of clothing.

Defendant Gardiner was a clothing merchant and merchant tailor in New Orleans.

In December 1896, these parties entered into an agreement by which plaintiff’s firm stipulated to furnish defendant with complete sample outfits such as were required for soliciting in his business as merchant tailor; also to supply defendant with a line of woolens, described, to be used for display at his place of business, but which were furnished on consignment only and not to be charged on defendant’s regular account, and which were subject to be recalled by plaintiff’s firm, some of them during the season, the others at the close of the season. It was further stipulated that the firm would open a regular account with defendant and extend to him a line of credit of one thousand dollars on thirty days’ time, with a discount of seven per cent, on remittances, and to fill promptly all orders which defendant would send in under the contract.

This business relationship having been established, it is averred by defendant that one of the plaintiff’s firm came to New Orleans in the latter part of January 1897 — a month and a half after the contract had been entered into — and visited his place of business, and while there agreed to extend his (defendant’s) credit and to increase the limit in which remittances should be made from thirty days to ninety days.

Following this, defendant ordered and received from plaintiff’s firm goods amounting to the sum of one thousand seveD hundred and seventy-seven dollars and fifteen cents, which represented the. state of the account between them on the 6th of July, 1897, at which time, it is averred by defendant, the same member of plaintiff’s firm appeared a second time in New Orleans and at his place of business, and although the amount mentioned was not due under the terms of their agreement, he (defendant) “ was induced and misled ” into giving to plaintiff’s firm the note sued on, with Peter Doerr as security, “ under the pretence and fraudulent assurance ” of the firm that if the debt were thus arranged for and secured, the firm would extend his credit thereafter to as much as three thousand dollars, thereby enabling him the better “ to carry on his large and growing business.”

The note and security having been obtained, defendant represents that plaintiff’s firm “did maliciously, fraudulently and deceitfully •and without cause violate their said agreement with him by refusing to furnish or supply him with the goods agreed upon,” and that this violation and refusal begun and took place immediately following the execution of the note as aforesaid.

He claims, too, that while plaintiff’s firm were assuring him of their good will and of the assistance they were going to afford him in his business, they were fraudulently, maliciously and secretly negotiating with a rival house for the transfer of their New Orleans business to it, and did so transfer it in July, 1897, immediately following the execution of the note sued on. He charges bad faith and malice on the part of plaintiff’s firm in thus withdrawing without cause and without notice their business from his hands, and avers that by this unwarranted act and violation of the contract he was materially injured in his credit, was unexpectedly deprived of the means of doing business, of carrying on his business properly for the season following the withdrawal, was greatly embarrassed by-having all the goods recalled from his store,^Heaving it empty,, and by his inability to furnish customers.

He represents that injury to his business and loss of trade followed, damaging him in the sum of five thousand dollars, which he prays judgment for in reconvention against the plaintiff as a member of the firm of Joseph Solomon & Co., and for trial by jury.

The answer^of defendant Doerr was to the effect that he became surety onVtie note for the purpose of facilitating Gardiner in his business, and with the understanding that plaintiff’s firm should and would enable the said Gardiner to increase and enlarge his business,, which understanding plaintiff has in bad faith?and fraudulently violated, thereby destroying the consideration of the note, and that he would neveivhave endorsed the note had he been advised of the secret intention, of the plaintiff to withdraw their business from Gardiner.

On the trial evidence was offered by defendant in support of his claim in reconvention. This was objected to by counsel for plaintiff on the ground (1) that there is no allegation in the answer and plea in reconvention that plaintiff had been put in default; (2) that the averments of the reeonventional demand as to the damages claimed are too vague, indefinite and uncertain to admit of proof thereof— no particulars of any kind being given, no items' of damage being specified, only a gross sum in damages being claimed.

These objections were sustained and all of defendant’s testimony excluded.

Whereupon the trial ended with a verdict by the jury in favor of the plaintiff for the amount of the note sued on, with interest, protest fees and costs. Nothing whatever was mentioned in the verdict as to the reeonventional demand, but when the trial judge came to write up and sign the judgment he not only decreed in favor of plaintiff for the amount as found by the jury, but proceeded further and decreed the rejection outright of the reeonventional demand of defendant Gardiner.

. Thereupon both defendants took orders of appeal to the Court of Appeals from the judgment decreeing plaintiff’s right to recover the amount of the note, and defendant Gardiner took an order of appeal here from the judgment rejecting his demand in reconvention.

As a matter of practice as well as of law there was error in not instructing the jury there was no evidence before them touching the reconventional demand, and that as to such demand they should return a verdict of non-suit. So, too, there was error in the judgment signed decreeing the rejection of the reconventional demand. It should have been one of non-suit.

The ruling of the court denying defendant Gardiner the right to offer evidence in support of his demand in reconvention was erroneous as to both the grounds stated above.

The terms of the answer and plea in reconvention in respect to the violation of the contract complained of, sufficiently show it to have been an active violation. In such case no formal putting in default was necessary. C. C. 1932; Allen, West & Bush vs. Steers, 39 La. Ann. 589; Dwyer Bros. vs. Administrators, 47 La. Ann. 1235; Abels vs. Grover, 15 La. Ann. 247; Millard vs. Farley, 15 La. Ann. 519; Levy vs. Schwartz, 34 La. Ann. 213; Morton vs. Pollard, 9 La. 175; 8 La. 522; 18 La. 513; 17 La. Ann. 203; 36 La. Ann. 425; 14 La. Ann. 81; 9 R. 377; 2 La. Ann. 957.

The averments of the reconventional demand in respect to the damages claimed were sufficiently definite and precise to admit of testimony in support thereof.

Bickham & Son vs. Hutchinson, 50 La. Ann. (not yet reported) ; Doullut vs. McManus, 37 La. Ann. 802; Tracey vs. Tuyes, 7 N. S. 356.

It is, therefore, ordered, adjudged and decreed that the verdict and judgment appealed from, in so far as the same reject and disallow defendant Gardiner’s demand in reconvention, and deny him the right to offer proof in support thereof, be annulled, avoided and reversed, and that this cause be remanded to the court a qua to be proceeded with according to the views herein expressed and the law-costs of both courts, accruing in respect of said demand in reeonvention, to be taxed against plaintiff and appellee.


author: Miller, J.

text:
    No. 12,749.
    The State vs. George W. Davidson.
    1. Tiie power to fix places for tlie sale of food commodities for the daily wants of the community exerted by ordinances establishing the markets and prohibiting sales of such commodities elsewhere, is a municipal function vested by the charter in the city of New Orleans. Act No. 45 of 1896, Sec. 14: 49 An. 618.

      2. Hence, it is competent .for the council to prohibit the sale of perishable food commodities in the railroad depots or landings of the city, except such sales of the articles in the unbroken packages in which the articles are imported into the State.
    3. The ordinance as one intended to prevent the conversion of the railroad depots and landings into places for the offering and sale of perishable food commodities is not to be annulled for alleged oppressiveness or unreasonableness, and the exception removes any incompatibility between the ordinance and the commerce provision of the Constitution of the United States. Const., Art. 1, See. 8; Brown vs. Maryland, 12 Wheaton, p. 436.
    ON APPEAL from the First Recorder’s Court of New Orleans. Finnegan, J.

      Jas. J. MeLoughlin, Assistant City Attorney, and Samuel L. Gilmore, City Attorney (Bernard Bruenn of Counsel), for City of New Orleans, Plaintiff, Appellee.

      Denegre, Blair & Denigre for Defendant, Appellant.
    Argued and submitted November 11, 1898.
    Opinion handed down December 5, 1898.
   The opinion of the court was delivered by

Miller, J.

The defendant, fined for the violation of an ordinance of the common council, entitled “An Ordinance to prohibit the sale of onions, cabbages, potatoes and other perishable articles at railroad depots and public landings,” prosecutes this appeal.

The defence is the ordinance violates the commerce clause of the Constitution of the United States; is violative of Art. 1, Sec. 155, of the Constitution of the United States, is oppressive and unjust, and that the ordinance exceeds the power of the council.

The ordinance prohibits “ the receivers of onions, potatoes ” and other perishable fruit from selling their commodities at railroad depots and public landings, in other than'the original packages, and prohibits the receivers or consignees from selling at all except to licensed dealers; the ordinance further prohibits the sale at the depots by- those who purchase the commodities, and prohibits all sales at any other depot than that where the commodities were received.

It may well be that this ordinance, in some respects, transcends the authority of the council. But as this controversy is presented the defendant complains of the fine imposed on him for selling potatoes, not in the package in which they were imported, in a railroad depot. "We are not called on to deal with the ordinance in any other aspect than that presented of the fine imposed on defendant for selling potatoes, a perishable food commodity, in the railroad depot. The question then is whether the ordinance authorizes the fine, and the further question is whether the council possesses the power to prohibit such sales in the depots of the railroads of this city.

The ordinance, like a statute, may be valid in part, and void as to the residue. The title of this ordinance, to regulate sales of perishable commodities,such as potatoes,onions, etc.,at railroad depots and public landings, is followed by a section of the ordinance.prohibiting such sales in other than the original packages, i. e., the packages brought on the cars. In this aspect the ordinance seeks to prohibit the conversion of the depots of this city into markets for the display, keeping and sale of perishable food commodities apt to become offensive and to menace the public health. In all cities the places of sale of such commodities, that is, in quantities adapted for the daily wants of the community, is, we believe, restricted to the markets designated by the council, at least we have always had such ordinances. This court has sustained the power of the council to enact such ordinances. State vs. Namias, 49 An. 618.

The argument for the defence that this ordinance has no relation to the public health or cleanliness of the city, but was passed to serve other purposes, has had our attention. In support of the argument it is urged or implied that private interests or rivalry in the business of selling these food commodities .dictated the ordinance. It is not for the court to ascertain the motives that may have prompted the ordinance; the inquiry is whether its declared purpose is lawful, and whether the ordinance is restricted within the scope of that purpose. It may be that in the exercise of the police power of the city, private interests may suffer, but the private interests that may be affected by this class of ordinances regulating the places where perishable food commodities may be exposed for sale and sold must yield to the public interest of health and cleanliness the ordinance is designed to subserve.

It is claimed the ordinance is unreasonable and oppressive. The argument is aimed at the provision forbidding the sales of perishable commodities to any but licensed dealers, even in the original packages. We are not now dealing with that part of the ordinance, and no view is required to be expressed as to that prohibition clearly separable from the inhibition that the railroad depots shall not be used for the sale of these food commodities taken from the original package and disposed of in the quantities that may be desired by the purchasers. Nor are we called on to consider that other provision of the ordinance invoked to sustain this branch of the defendant’s argument, prohibiting those who purchase in the original package from selling at or in the depots the commodity in the original package, and that extends the prohibition so as to prohibit such sales at depots other than that where the article was originally received. Again our attention is called to an exception in the ordinance that exempts from its operation the vendors who peddle fruits in the depots from baskets. We can not appreciate that forbidding the exposure for sale and sale in railroad depots, of onions, potatoes and similar articles, because they are perishable and apt to result in filth and offensive odors, is to be deemed unjust and oppressive for the reason that the “ basket vendors ” of fresh fruit is permitted. If this ordinance had undertaken to prohibit these “ itinerant vendors ” from peddling fruit in baskets,” in our view such a prohibition might well have been deemed oppressive. We have given attention to all these and other phases of the'argument designed to attack this ordinance as unreasonable. In the restricted view we take of the ordinance already stated, we are unable to hold the ordinance exposed to this line of attack.

The Article 155 of the Constitution and the bill of rights in the Constitution are supposed by the pleadings of the defendant to be involved in the consideration of the ordinance. We presume, however, the argument that the ordinance is unreasonable and unjust, and an unwarranted interference with the business done at depots and landings, the ordinance is aimed to prohibit, embodies all that it is supposed can be urged, based on the provisions of the organic law cited in defendant’s pleadings. The objection that the ordinance is an interference with interstate commerce and violative of the commerce clause of the Constitution of the United States is, we think, answered by the ordinance. Constitution United States, Art. 1, See. 8. The ordinance imposes no restriction on the sale of the commodities in the original package, i. e., in which the commodity is imported. When the transportation is completed, the articles taken from the package and offered for sale, the ordinance then ■operates to regálate the places of sale. It is settled that when the importation is complete, the property no longer, in the original package, but removed therefrom, and mingled with the property in the State, the mass becomes subject to the police as well as the taxing power of the State. Brown vs. Maryland, 12 Wheaton, p. 436, and the line of cases of that type.

Viewed only as an ordinance to prohibit the sale of perishable commodities at landings or railroad depots, and excluding from con - sideration all other portions of the ordinance, in our opinion, we have before us a municipal regulation within the competency of the council and the mere exercise of the police power presenting no conflict with the Constitution, Federal or State.

It is therefore ordered, adjudged, and decreed that the sentence of the lower court be affirmed with costs.

Nicholls, C. J., dissents.