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    No. 1290.
    Mrs. Ida L. Bransford, Wife, vs. John S. Bransford, Husband. Hathaway, Soule & Harrington, Intervenors.
    1. When the wife sues her husband for a separation of property and a dissolution of the matrimouial community, she carries the burden of proving that the disorder of his affairs is such as to endanger her separate property, in esse, or her future acquisitions.
    2. If she claim a moneyed judgment against the husband, or the recognition of her paraphernal title to property he has transfe red to her, in satisfaction, in whole or in part, of her claims against him, she must administer clear and satisfactory proof of her husband’s indebtedness to sustain her action as against intervening creditors.
    PPEAL from the Fifth District Court, Parish of Ouachita. Richardson, J.

      Potts & Hudson Attorneys for Plaintiff and Appellee :
    Marriage in Louisiana is only a civil contract under which each of the contracting parties have their rights and obligations well defined by the law. R. O. C. 86; 25 An. 428; 32 An. 1140.
    The wife is not only a creditor of her husband for the value of her paraphernal property, alienated by him, but is a privileged creditor. R. O. O. 2390, 3215, 3319; 34 An. 788; 45 An. 774, 877.
    “ The wife may during the marriage petition for a separation of prop - erty,” etc., “when the disorder of his affairs induces her to believe that his estate may not be sufficient to meet her rights and claims.” R. C. O. 2425; 23 An. 277.

      She may also obtain a judgment of separation if there is such derangement of the husband’s affairs as to render a separation necessary to preserve her future acquisitions and earnings for the uáe of herself and family. 10 An. 272; 2 Rob. 342; 24 An. 25; 3 L An. 672; 37 An. 326.
    All property owned by the wife at the time of the marriage, in absence of a marriage contract, and all the property inherited by or donated to her during the marriage, is paraphernal. O. O. 2383, 2402.
    The proceeds of insurance policies taken out in favor of or transferred to the wife are also paraphernal. 23 An. 455; 26 An. 326; 27 An. 269; 29 An. 714; 33 An. 322; 42 An. 739; 46 An. 240, Stuart vs. Sutcliffe.
    The husband can sell or transfer to the wife property sufficient to replace her paraphernal property alienated. O. C. 2446; 34 An. 995; 33 An. 536; 30 An. .745; 8 An. 485.
    The creditors of the husband have.no interest to contest the dissolution of the community vel non between Mrs. Bransford and her husband. 39 An. 385, Burns vs. Thompson.
    The interventions themselves are conclusive proof of the disorder of the husband’s affairs. 39 An. 385.
    When he who alleges insolvency shows the amount of the debts, it is incumbent upon the other party to show property in an equal or greater amount. O. O. 1985.

      Guriby & Sholars Attorneys for Intervenors and Appellants:
    A wife can not sue for a separation of property without showing that her husband is insolvent.
    Where it is manifest from all the facts that the husband and wife are acting in collusion to defeat his creditors, her demands should be rejected.
    Where the wife’s father’s succession has never been settled, she can not sue her husband as an heir thereof for claims which the husband has settled with her brother, who is practically the administrator of the succession.
    Where there is no proof that the piece of property sold by the wife was received by the husband, he is not liable on a mere pre - sumption that he received such funds. The sale by the wife is an act of administration which implies that she received the price.

      Where a life insurance policy is assigned to one of the spouses and before the death of the insured the policy is compromised and the money received from it is used by the husband and the insured in their mercantile business, the wife can not claim that the husband owes her for such policy. It was not her paraphernal property.
   The opinion of the court was delivered by

Watkins, J.

Plaintiff, a married woman, sues her husband for a dissolution of the matrimonial community, a separation of property, the recognition of her separate property, and her right of administration thereof, grounded on his insolvency and the generally disordered condition of his financial affairs, endangering her paraphernal rights and claims as well as her future acquisitions.

The property petitioner claims is specified, as well as the sources from which same were derived; and the various items of indebtedness of her husband are enumerated, and the resulting balance due is fixed at one thousand four hundred and sixty dollars, for which she demands a personal judgment.

Several of the defendant’s judgment creditors intervened and resisted plaintiff’s demands, denying her paraphernal ownership of the property claimed and the reality and validity of the indebtedness she prefers against her husband, charging same to be fictitious and fraudulent, and the act of restitution, by defendant to his wife, of the property claimed as a part of a scheme on the part of the defendant to defraud his creditors and put his property beyond their reach.

The defendant made default.

On these issues the case was tried, and judgment pronounced in favor of plaintiff for the sum of one thousand and sixty-six dollars, dissolving the community, decreeing her the owner of the property specified in her own paraphernal right, and giving her the separate administration and control of same, and from that judgment the interveno^s have appealed.

It is evident that in this case, as well as all others • of its kind, the principal question is whether the plaintiff had a valid subsisting debt or demand against her husband. ■ If she had, the defendant was entitled to convey to her property in partial satisfaction of it, as he did, and she is entitled to judgment for the resulting balance. Otherwise the charges of unreality and fraud are substantiated, and the judgment must be reversed and a decree pronounced in favor of intervenors.

The issues before us are identically the same as they were' in the court below, with the exception that the moneyed demand of the plaintiff is restricted to one thousand and sixty-six dollars, as that is the amount for which judgment was- pronounced in her favor, and she has not answered the appeal and demanded an alteration of the decree.

The following are the items of defendant’s indebtedness as recited in the act of restitution and reiterated in plaintiff’s petition, viz.:

1. The sum of two hundred dollars, which was paid to the defendant as the one-third of the purchase price of the plantation known as the Indian Village place, to which the plaintiff was entitled as an heir of her deceased father, John A. Oovington.

2. The sum of four hundred and sixteen dollars, which was likewise paid to the defendant as the one-third of the purchase price of the plantation known as the Lowery place, to which plaintiff was entitled as heir.

8. The sum of four hundred dollars, which was likewise paid to the defendant as the one-third of the price of certain mules, stock of cattle, sheep, etc., which were disposed of and to which plaintiff was entitled as heir.

4. The sum of one thousand two hundred and fifty dollars, which was likewise paid to the defendant, as the proceeds of certain policies of life insurance which had been compromised and surrendered, to which plaintiff was entitled as assignee.

Olaim is made for the first three amounts as having been derived from the sale of property of the plaintiff’s father’s succession, made by his legal heirs and surviving widow, and of which plaintiff was and is beneficiary to the extent of one-third, on the following theory:

That during his lifetime John A. Covington acquired sundry small pieces of improved real estate, situated in the vicinity of the place where he conducted a mercantile business which was operated in the name of John A. Covington & Son. That J. A. Covington was twice married, and of the first marriage the plaintiff and her brother, J. Y. Covington, were the sole surviving issue at his death; and of the second marriage there was no issue — his second wife surviving him.

Of the various properties which J. A. Oovington purchased, some were acquired during the second, but the greater part during the first community; consequently, the three parties in interest agreed among themselves to make a division of the effects of the deceased on the basis of one-third to each; and hence, when a piece of property was sold, one-third of the proceeds was delivered to each — the share falling to the plaintiff being delivered to her husband, the defendant.

After his father’s death, J. Y. Oovington, the son and partner, continued to operate the mercantile business as before, to pay its debts and wind up its affairs — -there having been no formal administration of the succession — and the heirs taking unqualified control of the property and affairs of deceased as their own, as an inheritance, without objection or complaint |¡>y creditors.

The intervenors, however, insist that J. A. Oovington was largely indebted at the time of his death, and, consequently, there was nothing remaining in his succession for his children to inherit, and they had no inheritance.

There is in the record no proof of J. A. Covington’s indebtedness at time of bis death, except the statement that J. Y. Oovington made as a witness in another suit, to which thé plaintiff was not a party, or a privy. And as she urges the objection that it was res inter alios aeta, we must decline to consider the evidence, as the objection was undoubtedly good and should have been sustained by the judge a quo.

But if the proof be as intervenor’s counsel insist it is, it could not affect the question, for the reason that by the simple and unconditional acceptance of J. A. Covington’s succession by his heirs, and the appropriation and sale of its property and effects, the succession is no longer in esse, it becoming absorbed by the heirs. In addition, J. Y. Oovington took charge of and subsequently conducted the mercantile business of J. A. Covington & Son, and liquidated its affairs and presumably settled its debts. At least it is reasonable to suppose that they have been settled, as we hear of no complaints, suits or judgments by his creditors, and the heirs have peaceably taken possession of his property, sold it, and divided its proceeds. Under these circumstances we think we are not at liberty to entertain a doubt of the reality and validity of the plaintiff’s inheritance from her father.

As to question of fact, we are of opinion that there is just as little doubt as to the amount plaintiff was entitled to have received on the score of the sale of the Indian Village and Lowery places; but as to the four hundred dollars she claims on the score of stock, etc., sold, we can not express our opinion, inasmuch as the District Judge rejected that item and plaintiff asked no amendment of his judgment.

In regard to the second item the proof is clear to the effect that the sum.of four hundred and sixteen dollars yas delivered into the possession of the defendant for the plaintiff; and there is no proof that the money was afterward returned to her. But in regard to the first item the proof is not quite clear. The party who made the purchat e of the Indian Village property states that he paid five hundred dollars in cash to J. Y. Covington in two different payments, and gave his note for the balance of one hundred dollars; and that neither the plaintiff nor the defendant was present at the time. Covington rather confuses the matter in his statement by making an explanation of the two transactions at the same time; but he substantially declares that he “paid one hundred and fifty dollars of that which Bransford received.” And, taking this statement in connection with that of Parker, it becomes reasonably certain that the defendant did receive this one hundred and fifty dollars, which is fifty dollars less than the sum allowed by the judgment appealed from.

The transaction with regard to the life insurance policies was substantially as follows, viz.:

J. Y. Covington being somewhat embarrassed financially obtained a loan of money upon the endorsement of two friends to the extent of about eight thousand dollars, and as collateral security he assigned to them two policies of life insurance for two thousand five hundred dollars each.

Having subsequently returned the money borrowed, the pledgees transferred the policies to the plaintiff at the request of the beneficiary, her brother.

Eor reasons of his own, which were not disclosed, the agent opened communication with the plaintiff as assignee with a view of compromising the risk and recalling the policies. This negotiation was attended with some difficulty and delay.

Of this the agent says:

“I then called upon Mr. Bransford, made known my business to him, and offered to pay Mrs. Bransford the amount of the premiums paid with interest, if she would surrender the policy. The matter was submitted to her and declined. During the next six or eight months I made her, through her husband, four or five offers. Finally, I offered to pay her one thousand dollars for the remainder of the policy. Every offer (was) in turn declined (and) in the meantime one or two half-annual premiums were paid. During the last week in February, 1893, Mr. Bransford called me in his store and said that he was hard pressed for money, etc., and that if I would pay one thousand two hundred and fifty dollars for the policies, that he was of opinion he could induce his wife to sell them.
“I submitted the offer to the company (and it) was accepted.
if: i,’; # :¡¡ H*
“I then wrote out a receipt for Mr. Bransford to send to Mrs. Bransford to sign, and drew my check No.' 15* on the Capital State Bank, at Jackson, Mississippi, payable to my own order, and left it with Mr. F. P. Stubbs to deliver to Mr. Bransford upon the delivery of the policy and receipt signed by Mrs. Bransford. In a few days the receipt was received, * * * and upon the receipt of the policies and premium receipts I handed Mr. Bransford my check No. 15 before mentioned amounting to one thousand two hundred and fifty dollars.”

It thus appears that not only were the policies duly assigned by Covington’s pledges to Mrs. Bransford, at his request, but the insurance company recognized her as the legal assignee of them, and, as the result of an eight months’ negotiation with her, purchased them from her and paid her one thousand two hundred and fifty dollars for them, giving the agent’s check to the defendant.

The president of the Ouachita National Bank states that he recollects the check and that same was collected through his bank for account of J. S. Bransford; and that the proceeds were placed to the credit of his account and drawn out again on his checks at different times.

The averments of intervenor’s petition with reference to these insurance policies are that defendant never owed his wife anything on account of his insurance policy. That Bransford paid the premiums on said policy, and whatever accrued thereon was the result of a contract made during the community, and belonged to the community. They further specially deny that defendant received any cash or property,” etc.

The theory of intervenors is manifestly incorrect. The policies were issued in favor of J. Y. Covington and were payable to him or his assigns. Either he or his pledgees paid the premiums. After the demands of his pledgees had been satisfied and they had been reimbursed the amount of the premiums they had paid, the policies were at once assigned to Mrs. Bransford at Covington’s request. He swears to this as a witness.

There is neither allegation or proof of any fraud or simulation in the transaction on the part of Covington. He was not made a party to this suit, and no attempt was made to annul the assignment of the policies to Mrs. Bransford on any ground. Covington owed the intervenors nothing, and, being an unmarried man, without nearer kindred or heirs than his sister, he had a perfect legal right to transfer the policies to her as he did. And it was near eight months, subsequently, that she sold them to the company and her husband received the money.

But our attention is attracted to the fact that the proof discloses that at the time of these transactions J. Y. Covington had a latent interest in the defendant’s business — having from time to time loaned him money to be employed in his business; and consequently when Bransford collected the one thousand two hundred and fifty dollars from the insurance company and cheeked it out of bank for the benefit of his firm, same enured to Covington’s benefit also. But that is a non sequitur, for if Bransford was indebted to Covington for advances of money his disbursement of the one thousand two hundred and fifty dollars among other creditors did not benefit Covington nor reduce the amount of his claim. Certain it is that no part of the one thousand two hundred and fifty dollars was paid to Covington and the proof shows that Bransford subsequently sold his entire stock of goods for about five thousand dollars in cash, and out of the proceeds of sale he paid Covington about one thousand five hundred dollars in full of his claim — assuming all of the liabilities of the mercantile business.

If there is anything in these transactions, which even tends to show fraud or simulation, or an interest in the community, it is not discoverable.

• To our minds the proof of the paraphernal character of the plaintiff’s claim to the insurance money is just as clear and as free from doubt as the claims which arose out of her inheritance from her father’s succession.

In Stauffer, Macready & Co. vs. Morgan, 39 An. 632, the identical question under consideration was examined and decided. In that case the creditors of the husband attached property standing in the name of his wife, as that of the community, and she intervened, claiming that it was her separate, paraphernal property — having been purchased with her separate means, under her administration and control.

The principal question was as to the paraphernality of the funds with which the wife’s alleged acquisition was made, and the controversy chiefly turned upon the question, whether there was an actual, completed donation of a check, which the groom gave to his fiancé, on a New York bank, just prior to their marriage — the attaching creditors denying the effectuality of the donation, and the intervenor affirming it.

The court said: “Granting the correctness of the proposition of law (contended for by plaintiff’s counsel), we are satisfied that the presentation of the check to the firm on which it was drawn, and the placing of the proceeds, under her instructions, to her credit, was an effective collection of the check and a reduction of the proceeds to her possession” — thus completing the donation by a manual delivery of the proceeds and avails of the check.

So, in this case, the donation of the insurance policies was perfected by their surrender to the company and then payment of the price to her husband upon her receipt.

The assignability of such a policy of insurance as that under consideration is instanced by the current and weight of authority in this State. Succession of Hearing, 26 An. 326; Succession of Bofenschen, 29 An. 711; Putnam vs. Insurance Company, 42 An. 739; Pilcher vs. Insurance Company, 33 An. 322.

And in the recent case of Stuart vs. Sutcliffe, 46 An. 240, all of the authorities are collated, reviewed and the doctrine reaffirmed.

From the foregoing summary of law and fact it follows that the plaintiff’s title to the property is supported by a good and valid consideration and was properly recognized by the judgment appealed from; that there was a valid and subsisting indebtedness on the part of the defendant to the plaintiff in excess of the estimated value of the real estate, to the amount of one thousand and sixty-six dollars, as specified in the judgment, less the sum of fifty dollars as we have ascertained from the evidence, and by which amount it should be reduced; aud that, on account of business complications and his suspension of business, and the general disorder of his affairs, the plaintiff is entitled to a separation of property, the dissolution of the matrimonial community and the control, management and administration of her separate estate and property. R. C. C. 2425.

The judgment should be amended and affirmed.

It is therefore ordered and decreed that the moneyed judgment appealed from be amended and reduced in amount by the sum of fifty dollars, and as thus amended the entire judgment be affirmed and the cost of appeal taxed against the plaintiff and appellee.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 1283.
    Edward Wisner vs. The Delhi Land and Improvement Company, Limited, et al.
    A stockholder having sued the corporation, for the annulment and revocation, of a sale of property to a director and stockholder, charging fraud and want of consideration; and the corporation having sought to justify its action by a ratification of the stockholders at a general meeting, the plaintiff will be estopped from proving that the shares of stock which were voted at the meeting were fraudulently issued without consideration, the evidence being stamped on the face of the certificates that same were certified by him as the secretary of the corporation and issued to the stockholders.
    This case is not that of a witness whose testimony is objedcteo? on the ground that he can not be heard to impeach the truthfulness of a certificate he had previously made as an officer, but that of a party who sues the corporation tion of which lie is a shareholder for the annulment of a sale which the corporation has made, and charges, as a badge of nullity, that the shares of stock which were voted at a general meeting, approving and ratifying the sale, were fraudulently issued, when in fact the certificates signed by the plaintiff as secretary of the^eorporation^show on their face that they were fully paid up at the date of their issuance.
    APPEAL from the Sixth District Court, Parish of Eichland. Ellis, J.

      H. P. Wells for Plaintiff and Appellant.

      Boatner & LamJcin for Defendants and Appellees.
   The opinion of the court was delivered by

Watkins, J.

This is a revocatory action, coupled with an action of nullity — an action sui generis possessing features common to both

Or, in other words, as an individual shareholder in.the defendant company — and of which corporation he was a director and secretary— Edward Wisner institutes this suit for the revocation and annulment of a certain sale, in globo, of all the property of the corporation to another stockholder and director of the company on the ground, first, that the sale was not properly authorized by the stockholders at a general meeting; second, that there was no necessity for the sale; and, third, that the sale was fraudulent, not being competitive and open, or for adequate consideration.

Preliminarily the defendant, Frederick Rohnert, tendered several-peremptory exceptions, viz.:

1. That the plaintiff failed to tender to the respondent the amount expended by him as the price of the property in controversy, and which has enured to the benefit of the Delhi Land and Improvement Company.

2. That he is estopped from contesting the legality of the directors’ meeting held on the 3d of April, 1893, and its action in ratification of the sale to the respondent, because the action of the board of directors was ratified and confirmed at a stockholders’ meeting held on the 4th of April, 1893, at which plaintiff was present, and in which he participated without protest or objection, and voted on the proposition to ratify the same.

3. That he is estopped from questioning the legality of the stock, owned and voted by Hibbard Baker and Morse Rohnert at the stockholders’ meeting aforesaid, on the ground that, as secretary of the corporation, he signed and issued same, and can not be permitted to question or impeach the validity of his own official action.

Reserving the benefit of his exceptions, the defendant plead a general denial, and averred that he became the purchaser of the land in controversy in due course of business, without fraud and for a fair consideration. He prays that plaintiff’s demands be rejected.

The land company urge the same exceptions, and the additional one that the land was sold for the purpose of providing means for the payment of pressing debts of the company and to protect the titles to other lands that the company had previously sold to other persons, the title to which had not been perfected; that the proceeds of sale had been used for that purpose, to the knowledge of the plaintiff; and he has not tendered the amounts so paid, either to the purchaser or to the company, which tender is a prerequisite to. any action to annul the said sale.

Reserving the benefit of said exceptions the company made answer and alleged that the sale was legal and fair in every particular; that the board of directors had ample authority under the company’s charter to sell, and its action was ratified by all the stockholders, except the plaintiff — a majority thereof favoring and approving the action of the board of directors in making said sale; and that said ratification cured the defects, if any, in said sale, and supplemented the authority of the board of directors, if same was, in any respect, deficient.

Recurring to the averments of the petition, we find plaintiff’» statement of his case to be “that he, together with Hibbard Baker,. Morse Rohnert, Fred. Rohnert and William E. Robinson, of Detroit,. Michigan, and D. G. Edwards and one Miller, of Cincinnati, Ohio,, are, so far as petitioner is informed, the stockholders of the Delhi Land and Improvement Company, Limited, a corporation duly organized under the laws of the State of Louisiana, having its domicile at the town of Delhi, in the parish of Richland, with the said Hibbard Baker as its president and said Morse Rohnert as its secretary. He further represents that the objects and purposes of said corporation are to purchase, plat, sell and improve real estate, as is shown by its charter.

“ He further represents that the said Baker, president, and said Morse Rohnert, secretary, did, on or about the 2'7th of January, 1893, without any authority from either the1 board of directors or stockholders of the corporation, by notarial act, pretendedly sell and transfer all of the real estate belonging to said corporation, improved and unimproved, to Frederick Rohnert, one of the stockholders of the corporation.”

The sale thus described is the one against which this suit is directed, and of it the following complaints are made, viz.:

“ First. That whereas the sale was made for the ostensible consideration of sixteen thousand dollars, in fact the lands pretended to-have been conveyed were worth more than that amount.

Second. That Baker, Robinson and Morse Rohnert, on or about the-3d of April, 1893, acting as a board of directors, pretended to hold a directors’ meeting without giving due notice to all the directors as the charter requires, and thereat did pretend to ratify the sale that had been previously made by the president and secretary.

Third. That on or about the 4th of April, 1893, the president pretended to call an annual meeting of the stockholders, without giving to petitioner or any other stockholder any notice of said meeting; and that said meeting, not constituting a majority of stockholders in number, elected a board of directors for the year ensuing, ‘ and by a majority vote of those present confirmed the act of the board of directors at its last meeting, in which said board had authorized the president and secretary to make another deed to the land sold.”

Of the proceedings related complaint is made that on account of certain informalities and illegalities therein ‘ ‘ the sale is fraudulent, null and void, for the following reasons, viz. :

1. That the sale of all the property of the corporation is a practical dissolution thereof, in a manner different from that provided in its charter.

2. That the pretended meeting of the board of directors was illegal because proper notices thereof had not been given — three of the stockholders not being notified, and being, consequently, absent therefrom.

3. That the voting of the stockholders at the meeting was not by a majority of the stockholders in number; and that, while a majority of those voting held, or pretended to hold, a majority of the stock, there was no evidence at the meeting that the members voting were actual stockholders. That Baker was not, at the time, the holder of four hundred shares of stock of said corporation; and, if he was the owner of same, they are illegal, null and void, for the reason that he caused same to be issued to himself without any equivalent — neither money, property or labor having been paid therefor. That the stock voted by Morse Rohnert and William E. Robinson, at the stockholders’ meeting, was illegal and void for the same reason.

4. That the Constitution and laws of this State prohibit the issuing of any stock by any corporation until same shall have been paid for.

5. That the sale is fraudulent, for the reason that Baker, Rohnert and Robinson conspired together to deprive your petitioner of his rights in said corporation, and if it is not revoked it will result greatly to his injury. And that the ratification of said sale is fraud - ulent for the further reason that Robinson was induced to vote at the stockholders’ meeting in favor of the ratification of the sale, on the assurance of Morse Rohnert, Frederick Rohnert and Baker that he should still retain an interest in the lands pretended to be sold.

Thereupon an injunction was prayed for and obtained against the parties and the recorder, prohibiting them from putting deeds to the property of record until further order of the court — the prayer of the petition being that the sale be annulled and revoked and the injunction perpetuated.

Upon the introduction of proof and trial had, there was judgment rejecting plaintiff’s demands and affirming the legality of the sale, and dissolving the injunction. From that judgment the plaintiff has prosecuted a devolutive appeal.

From the foregoing synopsis of the pleadings it appears that the only complaint of the sale, in itself, is that the consideration was inadequate, and, as to the general effect of the sale, that it operated, practically, a dissolution of the corporation in a mode different from that provided in the charter.

All other charges and specifications relate to certain irregularities in the proceedings had by the board of directors and the stockholders at a general meeting, the purport and object of which were to ratify and confirm a sale of the property that was previously made to the defendant, Rohnert.

We gather Jrom the admissions of fact contained in the petition that Baker, pr.sident, and Morse Rohnert, secretary, made a sale on the 27th of January, 1893, to Frederick Rohnert of all the real estate that the land company owned at the time for the expressed consideration of sixteen thousand dollars in cash — the expressed object of the sale being to raise the means necessary to pay immediately pressing debts of the corporation. That subsequently recognizing the fact to be that they, as president and secretary of the corporation, could not make a legal and valid sale of property of the corporation, without first being authorized by the corporation, the president called a meeting of the board of directors, and at the meeting thus called the previous sale was ratified. That immediately afterward the president called a general meeting of the stockholders and thereat a new board of directors was chosen, and by a majority vote at this stockholders’ meeting the action of the former board of directors was ratified.

The only complaint that is made of this meeting of the board of directors is that all of the directors were not notified of the meeting; but it is not alleged that all the directors were not present at the meeting — participating therein. ■

And the only objection that is urged against the stockholders’ meeting is that not one of the stockholders was notified; but as it appears that the plaintiff as a stockholder was present and voted, and now urges as an illegality in the proceedings that a majority in number of the stockholders did not vote for the ratification of the sale, we must conclude that a majority of the stockholders was present and voting — the plaintiff being present and casting the only negative vote, and the majority of those present voting in the affirmative.

As a majority of the stockholders were present and participating, and those holding a majority of the. certificates or shares of stock voted in favor of the ratification of the act of the board of directors in making the sale, it is difficult to perceive the basis of the plaintiff’s objection — he having been present and participated in the meeting without protest or complaint of the time or manner of its organization, or as to the right of the holders of majority of the stock to control the election. The same is true of his complaint that there was no proof exhibited at the stockholders’ meeting that the members voting actually held a maj ority of stock. There was scarcely a neces - sity for the exhibition of such proof at the meeting in the absence of any question or complaint on that score.

The further charge is made that Baker was not the real and actual owner of four hundred shares of stocky and if he was same were issued at his instance and request, and without any price or value having been paid therefor. And it is alleged that the same is true of the stock certificates that were issued to Morse Rohnert and William E. Robinson.

But in the defendant’s exception the point is made that the plaintiff is estopped from questioning the legality of the stock which was owned and voted by said stockholders, on the ground that, as secretary of the corporation, he signed and issued same, and can not be permitted to question or impeach the validity of his own official action.

There is in the record — brought up in the original — a certificate which states “that Morse Rohnert is the holder and owner of one hundred and sixty-seven paid-itp shares in the capital stock of the Delhi Land and Improvement Company, Limited.” And this certificate bears this jurat, viz.:

“In testimony whereof the president and secretary have signed their names and caused the seal of the company to be affixed thereto, on this the 4th of February, 1892, at Delhi, Richland parish, State of Louisiana.

(Signed) “ Hibbard Baker, President.
“Edward Wisner, Secretary.”

On the same date two similar certificates were issued to Hibbard, representing four hundred paid-up shares of stock; and to Edward Wisner, the plaintiff, one hundred and sixty-six shares — all likewise signed. It thus appears that Baker and Morse Rohnert collectively owned and held possession of five hundred and sixty-seven paid-up shares of the company’s stock, to the verity and genuineness of which he had certified as the secretary of the association. Not only is that the ease, but these certificates were issued more than a year previous to the date of the transactions complained of, and the same were used, recognized and voted by Baker and Morse Rohnert at the stockholders’ meeting — Wisner being present, participating and making no objection to their legality or genuineness, at a time when it was his duty to speak, if his charge is true.

This is not the case of an objection urged to the testimony of a witness on the ground that he cannot be heard to impeach the truthfulness of a certificate he had previously made as an officer. The plaintiff brings this suit for the annulment of a sale made by the corporation of which he is a stockholder and was secretary, on the ground that the sale was illegal, because the vote of the stockholders at the meeting at which same was ratified was illegal, for the reason that the stock voted thereat had been fraudulently issued and without any equivalent value having been paid therefor. How can he be heard to prove that state of facts, if true, to enable him to impeach and annul the sale for his own benefit and advantage? There may be circumstances under which such proof could be administered, but they certainly do not exist in this case. It is our deliberate conclusion that the estoppel urged, is good and must be maintained, and the proof excluded from consideration.

In regard to the charge of conspiracy on the part of Baker Rohnert and Robinson to fraudulently deprive petitioner of his rights in said corporation, there is no adequate proof in the record, nor of the charge that Robinson was induced to vote for the ratification of the sale, because it was agreed that he was to have an interest in the property.

It is incontestible and undenied that the corporation owed debts which were large in amount and pressing in character, and that the only means the corporation had of raising the necessary funds was the sale of its property. It is quite true that a sale had to be made of all the property of the corporation; but that fact is of no especial' significance when we consider that the very objects and purposes of the association were “ to purchase, plat, improve and sell real estate.” Oonsequently the dissolution of the corporation did not necessarily result from the sale of all the property the company chanced to own at the time. The proof is clear that the company had purchased and sold other properties; and that it was at the time of the sale in question negotiating for more. There is no proof of the sale having been made for an inadequate price. The price of sixteen thousand dollars seems to have been reasonable and fair when everything is considered. The result of the enterprise may have proven unsatisfactory and unprofitable. This transaction may have resulted injuriously to the plaintiff. But he will be compelled to submit to the common misfortune of those who embark in such adventures, of being overpowered by the majority of stock in a corporation of which he is a minority shareholder.

Viewing the question of want of previous tender from our present standpoint, it is unimportant. Though in such a case as this we are of opinion that the rights of the defendants could have been protected by a reserve in the judgment had one been rendered in favor of the plaintiff and appellant.

Judgment affirmed.


text:
    No. 1294.
    C. A. Brown & Bro. vs. G. B. Haynes, Administrator.
    When a motion is made in this court to dismiss an appeal, on the ground that the appellant has acquiesced in the judgment and consented to its execution, the cause will he remanded for the purpose of permitting the administration of proof on that question.
    PPEAL from the Fifth District Oourt, Parish of Ouachita. . R. W. Richardson, J.

      Gunby & Sholars for Plaintiffs, Appellants.

      Stubbs & Russell, Drew & Stewart and J. A. Dermen for Defendants and Appellees.
   The opinion of the court was delivered by

Watkins, J.

Plaintiffs averring themselves, in their partnership capacity, owners of a certain saw-mill complete, including engine, boiler and fixtures, and twenty thousand feet of lumber; and that the defendant, as administrator of the succession of J. O. Rouschick, has advertised said property for sale as that of the succession, prayed for and obtained an injunction staying sale proceedings until the rights of property could be judicially tested and determined.

In an amended petition plaintiff laid claim to a lot of saw-logs in addition to the aforesaid property.

In answer to the original petition the administrator pleads, first, a general denial, and, second, that the saw-mill plant and fixtures had been sold by the -plaintiffs to the deceased, who was in possession; and that the plaintiffs, thereafter, operated same as the employés of the deceased and for his account; hence he prays the dissolution of plaintiff’s injunction at his cost. His answer to the amended petition is a general denial.

On the trial there was judgment in favor of the plaintiffs, recognizing their ownership of the entire plant and property claimed— perpetuating their injunction; and from that judgment the administrator has appealed.

In this court the plain iffs and appellees have filed a motion to dismiss this appeal, on the ground that the judgment appealed from has been acquiesced in. They aver that “they are in the peaceable, undisturbed possession of the property- — -the subject of the controversy herein — and have been in possession thereof since the rendition of the judgment herein appealed from. That they took possession of said property with the full knowledge and consent of the defendant, G. B. Haynes, administrator; and that said defendant has fully acquiesced in said judgment and consented to the execution of the same.” Wherefore they pray that the appeal be dismissed.

The truth of the statement made in the motion is affirmed on the oath of one of the appellees.

Of course the appeal should be dismissed if, as the appellee’s motion declares, the appellant has acquiesced in the judgment rendered and consented to its execution since same was rendered. If, indeed, the plaintiffs have been allowed to take open, peaceable and undisturbed possession of the property in dispute, as owners, with the full knowledge of the defendant administrator, that is the end of the case and there is nothing further left for us to decide.

But manifestly these'are questions en pais, which require the administration of proof in the court of original jurisdiction — nothing appearing on the face of the transcript in respect to transactions ■occurring since the judgment was rendered in the court a qua.

For this purpose the cause must halt where it is until such proof is administered, and the cause must be remanded for that purpose.

It is therefore ordered, adjudged and decreed that the cause be remanded in its present situation to the court a qua, with instructions to the judge of the lower court to hear proof in regard to the defendant’s acquiescence in the judgment, so that further proceedings can be had in the cause according to law; and it is further ordered that further proceedings herein be stayed until the further order of this court.


author: McEnery, J.

text:
    No. 1292.
    City of Monroe vs. Wesley Hardy.
    The Legislature may delegate to municipal corporations power to adopt and enforce ordinances of special local importance, though general statutes exist relating to the same subjects.
    The same act may constitute a crime against the public law of the State and also a petty offence against a municipal regulation. The two offences are different, and each may be punished without violating any constitutional right of the party accused.
    Violations of city ordinances may be tried and punished summarily without information or indictment or trial by jury.
    APPEAL from the Recorder’s Court of Monroe. Endom, J.

      Thomas O. Benton, City Attorney, for Plaintiff and Appellee.

      Gunby & Sholars for Defendant and Appellant.
   The opinion of the court was delivered by

McEnery, J.

The defendant was convicted for playing within the limits of the city of Monroe a gambling game called “craps.”

The State of Louisiana, by Act No-. 7 of 1882, prohibits the playing of this game, and affixes a penalty for violating the same.

The defendant, because of this State statute, contends that the Recorder’s Oourt of said city, before which he was convicted, had no jurisdiction to try the case, and that the city ordinance prohibiting the playing of the game of craps is null and void, being in contravention of the Constitution of the State.

The Legislature has delegated to the city of Monroe ample and complete power to regulate and preserve the good order and peace of the city. Gambling is denounced by the Constitution as a vice, and its regulation and prohibition fall within the police powers of the city.

In a certain class of offences there may be concurrent powers in the State and the municipal authorities to prohibit them. The decisions on this point have beep, so numerous and uniform in upholding this doctrine that it has passed as an elementary principle into the text-books. Cooley’s Cons. Limitations, p. 242; Dillon on Corp., Vol. 1, Sec. 368.

The jurisprudence of this State is in accord with this doctrine. State vs. Fourcade, 45 An. 717.

In the 30 An. 454, it is said that fines may be imposed by municipal corporations for violations of their ordinances, and that the State may impose a fine for violations of the same act is well established. There can therefore be no objection to the municipal corporation imposing a fine for an act punished by a State statute, when the offence is of that nature that is embraced within the power of the municipal government to preserve public order and the public peace. The experience of municipal corporations will teach them which acts are of that nature that are likely to promote public disturbance, and in the exercise of their judgment in this direction there must necessarily be left to them a latitude of discretion which will not be disturbed by the courts unless in plain violation of personal rights.

In the instant case we do not see, nor is it contended, that any of the personal rights of the defendant have been violated. He has transgressed the State statute and is liable to punishment for so doing. He has violated a city ordinance enacted in the furtherance of the good order and peace of the municipal corporation. Here are two distinct offences — one directed against the police power of the State and the other against the municipal government. These offences, committed by one act, are of that nature that two prosecutions can be instituted, since the State has delegated the power to the Mayor and City Council of Monroe to pass all necessary ordinances to preserve the good order and peace of the city.

It would serve no useful purpose to enumerate the offences daily punished by both the State and municipal corporations. It is sufficient to say that where the act falls within the delegated police powers to the city, the prosecution for its commission may be instituted by both the city and the State — in the former case, when the penalty imposed by the city is within the limits of the penalty it is allowed to impose, and does not exceed the limit imposed by the State. On this point the authorities are practically unanimous.

Judgment affirmed.


text:
    No. 1284.
    Edward Wisner vs. Morse Rohnert.
    In case a petition contains two distinct demands, one o£ which discloses a cause of action and the other does not, the latter may, on exception, be disregarded and the cause permitted to go to judgment on the remaining issue in the District Court.
    If in such case the exception be improperly overruled by the judge a quo, and the ruling reversed in this court, and tlieremaining issue ascertained to be one not within the jurisdiction of this court ratione material, in consequence of said ruling, the appeal should be dismissed exproprio motu.

      Ellis, J. PPEAL from the Sixth District Court, Parish of Richland.

      H. P. Wells for Plaintiff and Appellee.

      Boatner & Lamkin for Defendant and Appellant.
   The opinion of the court was delivered by

Watkins, J.

The averment of the plaintiff’s petition is that in February, 1892, he executed a deed to the Delhi Land and Improvement Company, Limited, under certain conditions, to one forty-acre tract of land and one acre of land in the vicinity of Delhi, in the parish of Richland, and that at the same time and place said land and improvement company executed a deed in his favor to certain pieces and parcels of land in the same vicinity, the two transactions being intended as an exchange pro tanto. That said deeds were placed in the keeping and custody of Morse Rohnert, the defendant, “ with the understanding and express agreement that said deeds should not be recorded nor filed for record * * * until after the specific performance of a certain (other) agreement between the said land improvement company and petitioner, which agreement was in substance * * * that (petitioners) should pay, or cause to be paid, one-sixth of the indebtedness of said company as soon as the other stockholders should pay their proportionate parts of said indebtedness. That contemporaneously with the agreement and the delivery to the defendant of the aforesaid deed of the plaintiff, the former executed his obligation, in which he bound himself not to deliver said deed nor to permit the same to be recorded until after the delivery by him to your petitioner of the deed made by said land company in his favor.”

That on or about the 27th of January, 1893, the defendant, in violation of his agreement, did cause, or permit the said deed of petitioner to the land company to be recorded, greatly to the injury and detriment of your petitioner;” and plaintiff avers “that the permitting of the recording of said deed to said land company, or allowing same to pass from his custody, was in bad faith, and * * * that said violation of trust on the part of said Rohnert was expected and intended by said Rohnert to accrue to his personal benefit.” That said violation of trust and agreement was and is productive of great injury to petitioner, and to the extent of the sum of five thousand dollars, to-wit:

“ Petitioner is damaged in the sum of not less than one thousand dollars by the alienation from him of his property described in said deed, made by him to said land company without consideration, petitioner having received no consideration therefor. “Petitioner is further damaged in the sum of four thousand dollars by the reason that the said land company has pretended to dispose of all of the lands conveyed in both of the above described deeds; and that not without great cost and loss of valuable time, and the interference of business, can said agreement or contract with said Delhi Land and Improvement Company be enforced.”

Wherefore plaintiff’s prayer is “ for judgment in and for the amounts above specified (to) be rendered against the defendant.”

From a casual inspection of the quoted averments it is evident that there is not, nor could there be any contingency in which the District Ooux't or this court could now, or at any time, have rendered a judgment for more than one thousand dollars in favor of the plaintiff, and hence this court has no jurisdiction ratione materise. For the plain declaration of plaintiff’s petition is that “ he is damaged in the sum of not less than one thousand dollars by the alienation from him of his property described in his deed to the land company ” — that is to say the forty-one acres that is covered by the deed — being an estimative value of twenty-five dollars per acre, an exceedingly improbable valuation. And its further declaration is that he is “further damaged in the sum of four thousand dollars by the reason that the said land company has pretended to dispose of all the lands conveyed in both of the above described deeds.”

Granting this last declaration to be absolutely true in every particular, yet it is not alleged that the defendant was in any manner responsible for the damage that resulted. The land improvement company was not made a party to this suit. The defendant is not alleged to be an officer, director or stockholder of the company; nor is there alleged to be any privity of contract between them in respect to these transactions, from which, imputation of liability could be inferred.

In the court below there was first a judgment rendered in favor of the defendant, but on rule for a new trial that judgment was set aside and a new trial granted. On the second trial there was judgment in favor of the plaintiff for the sum of four hundred and five dollars, from which the defendant alone appealed.

In this court the plaintiff failed to answer the appeal and demand an increase of the judgment. This state of facts clearly characterizes the demands of the plaintiff — if that were needed — and furnishes confirmation of the view we entertain of the pleadings.

■ In the lower court the defendant filed an exception of no cause of action, which was undoubtedly directed at that part of the petition which refers to the damages that are alleged to have been suffered at the hands of the land improvement company. We are of opinion it should have been sustained to that extent, and the suit restricted to plaintiff’s remaining demand, as the judgment evidently was. Had this course been pursued the demand against the land improvement company would have passed out of the case, and clearly ex-hibifced the ]ack of jurisdiction in this court ratione materias. But as this was not done by the judge a quo, it becomes our duty to give effect to the plea of no cause of action in respect to the plaintiff’s demand against the land company. And finding that no cause of action is stated in this respect, the remaining demand for one thousand dollars is not within our jurisdiction, and the appeal must be dismissed ea; proprio motu.

It is therefore ordered, adjudged and decreed that the appeal in this canse be dismissed at appellant’s cost.

Rehearing refused.


author: MoEnery, J. Miller, J.

text:
    No. 1296.
    Vicksburg, Shreveport & Pacific Railroad Company vs. Milo Elmore et al.
    Parties without titles, occupying lands, may be joined as defendants in a suit for the lands by plaintiff asserting ownership. 2 Howard, 644; 1 Woods, 624; 28 An. 644.
    Purchasers, under foreclosures of mortgages of railroad franchises and property, may organize a corporation under such name as they may adopt, which, by the organization, succeeds to such franchises and property and takes the corporate capacity of the corporation against which the foreclosure proceedings were conducted. Act 38, 1877; 148 U. S. 397.
    The grant of lands by the United States in aid of a railroad, the State named as trustee for the road, the lands to revert to the United States if the road is not completed in ten years, the lands being identified by the grant and the listing approved, as directed by the act of Congress, vests title in the railroad company, although the road is not built within the limited time specified in the act, the grantor not insisting on the reversion, but accepting the subsequent completion of the road as compliance with the grant. Act of Congress 3d June, 1856; 11th Statute at Large 18; 21 Wall.4 4; 41 An 896; 42 An. 1019.
    The State, a mere trustee, can not declare a forfeiture of thellands granted. Act 39 of 1879; 44 An., 984.
    Those who settle on such lands in the face of the grant can not hold against the railroad company, and are possessors in bad faith, though the settlements are in contemplation of homestead entries and are made after the ten year limit in the grant and the non-completion of the road within that period; for all gave notice that the grant by its terms takes effect from its date, and that conditions subsequent, i. e. the non-completion of the road, may be W'ai ved and can be insisted on only by the United States by declaring the lands open for entry or equivalent act revoking the grant. O. C., Arts. 50,3, 3450, 3453; 42 An. 1019; 41 An. 896.
    The claim of a possessor in bad faith for alleged improvements is, at best, sparingly admitted; on the other hand he is liable for fruits during the entire period of his possession, and this court, without clear proof of same, will not disturb a verdict which compensates a claim for such improvements by the liability o£ the possessor for fruits, the verdict not being complained of by the plaintiff. C. C. 503, 508, 2314; 16 La. 422; 12 An. 546; 33 An. 744; 41 An. 896; 42 An. 1007; 7N. S. 112; 6 Rob. 192; 6 An. 356.
    The verdict of the jury responds to the issues when the plaintiff suing for the land and its revenues, the defendant claiming the value of the improvements, the verdict determines that the demand for improvements is compensated by that for revenue, and the judgment following such verdict is unobjectionable. C. P. 519, 526; 5 M.j456; ¿ R. 84.
    Nor will such verdict and judgment be set aside merely because, after being charged, the jury were permitted to leave the court and separate before giving their verdict.

      R. W. Richardson, J. PPBAL from the Fifth District Court, Parish of Ouachita.

      Qunby & Sholars, C. Newton and Frank Vaughan for Defendant and Appellant.

      Stubbs & Russell for Plaintiff and Appellee.
   The opinion of the court was delivered by

MoEnery, J.

This is a petitory action instituted by the plaintiff corporation against the defendants, who it is alleged “without any shadow of right or title” have entered upon a tract of land owned by plaintiff and described as the S. E. 1-4 of the S. W. 1-4; the E. 1-2 of the N. W. 1-4; the W. 1-2 of the N. E. 1-4; the S. W. 1-4 of the N. E. 1-4; the E. 1-2 of the S. W. 1-4; the S. E. 1-4 of the N. E. 1-4, Section 17, T. 17, R. 1, E., containing four hundred acres. It is alleged that the defendants are trespassers and have destroyed a large quantity of valuable timber and are still wasting the same to the great injury and damage of plaintiff; and that said defendants have occupied and cultivated said land for a period of five years. The prayer of petitioner is that the plaintiff recover judgment against the defendants, decreeing plaintiff to be the lawful owner of said land, and in the sum of five hundred ($500) dollars on account of the destruction of the timber on said land, and for four thousand ($4000) dollars for the use and occupancy of said land to the last day of January, 1892, and eight hundred ($800) dollars annually from said date until the delivery of the property to petitioner.

The defendants filed an exception to the suit on the grounds, (1) that there is a misjoinder of parties; (2) that the allegations in the petition are vagne, indefinite and insufficient; (8) that plaintiff is without capacity to bring this suit, there being no such corporation under the laws of Louisiana as the Vicksburg, Shreveport & Pacific Railroad Company.

The exception was overruled and the defendants answered in substance as follows: That the plaintiff corporation has no title whatever to the land sued for, and that the claim for damages is extortionate, far exceeding the value of the land.

That the mortgage of said lands granted to said corporation by the Federal government by Act 3 of June, 1856, is null and void, as the road could sell only twenty miles of said lands at a time, as said road was completed; and therefore the State, holding the lands in trust for the purpose of constructing the road, could not authorize the mortgage of said lands for the uncompleted portion of the road.

That on June 3, 1866, all the lands between the Ouachita and Red rivers reverted to the Federal government, as on that date the road had not been completed, and became part of the public domain, and the defendants had the right to enter upon and homestead the same.

That the road was not located as provided by act of the Legislature in 1857, and they deny that the lands granted to the railroad were ever transferred to plaintiffs, directly or indirectly, in the proceedings of Henry R. Jackson et a Is. vs. Jno. T. Ludeling et ais., or were ever seized or sold by the marshal, or that said lands could be seized or sold, in any manner, for debt, or transferred, until the road had earned the same by its completion. That the Federal government, through its Interior Department, has refused to issue patents to plaintiff for said lands. That the road was not constructed on the faith of the grant of said lands; that the Legislature in 1879 declared the grant forfeited, and in 1886 declared that said road had no title to said lands. That the United States Register of the Land Office advertised said lands for entry, and defendants went on the same in good faith, believing them to be subject to homestead occupation. Defendants, separating in their defence, aver that each has made application for homestead entry, and designates the quantity of land applied for by each. The answer sets out alleged oppressive acts of plaintiff and prays for damages to the amount of five hundred ($500) dollars.

The case was tried by jury and a verdict returned in favor of the plaintiff, as follows: “Pull possession of all the lands sued for in this case (situated in section 17) and all the improvements thereon; said improvements going in lieu of and to offset the claim of the plaintiff for rent and damages, including rents for the present year.” A judgment in favor of the plaintiff was entered in accordance with this verdict, except the order to deliver possession by January 1, 1894.

To this judgment the plaintiff excepted on the ground that it was not in accordance with the verdict, and assigned this as error. At this time we state that the delivery to the plaintiff could have been demanded when the judgment became final, and this extension of time could not injuriously affect the defendants.

Exception.

1. The petition charges that the defendants are trespassers upon the land to which the plaintiff asserts title. It is immaterial whether they set up claim to any particular part of the land as long as they are trespassers, without title, and possess the same, adversely to the true owner. They are sued jointly as naked possessors, and they haye a common issue in resisting plaintiff’s title. The defence of one is the defence of all the defendants, as each holds by virtue of the same title and are jointly interested in being maintained in possession. The primary question at issue is title to the property, and all the defendants are alike interested regardless of the quantity of land possessed by each. Derbes et al. vs. Romero, 28 An. 644.

2. There is no force in this objection. The petition contains every necessary and essential averment for maintaining the action.

8. We fail to see the application to defendants’ argument to the facts in this case. The record is against the pretensions of the defendants. The plaintiff acquired title through the foreclosure sale, December 1, 1879. The mortgage creditors purchased the mortgaged property and organized the present company. The organization was perfected, literally, in conformity to Act 88 of 1877, and a statement of the organization and formation of the corporation in compliance with Sec. 8 of the act was filed with the Secretary of State. The defendants objected to the copy of this statement certified by the Secretary of State being introduced in evidence, because the act of incorporation was not made by authentic act, and the copy was not. a copy of the authentic document which proves itself. The act did not require the formation to be by authentic act, and following the plain direction of the statute was sufficient. The statement of the formation of the company or corporation, when filed, became a part of the public archives and a certified copy of same is to all intents and purposes a copy of an authentic act, and authorizes its introduction as evidence. State vs. Cannon, Sheriff, 45 An., 1231; State vs. Lake, 45 An. 1207.

Merits.

The defendants aver that they have made application for homestead on the lands as a part of the public domain subject to homestead entry. Their claims are based on notices of the Register andl Receiver of the Land Office, at Monroe, La., inviting homestead settlers on the same. It is alleged that they had received instructions; that the lands granted to the railroad company, between the Ouachita and Red rivers, had been open to public entry. No such-instructions have been shown to have been issued, and it is a moral certainty that had they been issued, the original would be found in the government records at Washington. The fact, is that, in 1856, • Thomas A. Hendricks, Commissioner of the General Land. Office, withdrew these lands from sale, on the expected approval of the act of Congress of June 8, 1856, by the President, and it may be safely asserted that since that date they have never been open to entry. This is corroborated by the decree of the United States Supreme Court, recognizing the force and validity of the mortgage placed on the railroad and these lands, and their sale under the decree of the court, and the repeated action of one of the executive departments of the Federal government in recognizing, on the certificates of the Governor of Louisiana, the claim of the road to the lands granted to it by Congress. This recognition is not found in this record, but it is a part of the history of the corporation — not important in deciding this case, but merely stated incidentally. The fact still remains that the lands have not been restored to the public domain and that no department of the Federal government has done any act to disturb the rights of the road to these lands.

The other matters alleged as defences in the answers do not concern these defendants and are personal to the grantor. It is immeterial to them whether the road in its construction was diverted from its original line; how the State disposed of the trust confided to it by the General government; in what manner the lands were sold by the corporation; whether they were exempt from seizure and sale for debt; in what manner the road acquired possession of these lands; all these matters are questions for the Federal government to consider, and so long as it is satisfied with the manner in which the trust was exe cuted and the road built, no one else can complain. It is very certain that the defendants can not act for the government, and by any act of theirs, or any judicial proceeding they may invoke, restore these lands to the public domain against the wishes and desires of the Federal government, the grantor.

We have mentioned these defences, as the defendants assert this case presents issues not heretofore decided by this court. But we think they are all embraced within the issues in the cases of the Railroad vs. Sledge, 41 An. 896; Mower vs. Kemp, 42 An. 1007, and State vs. Railroad Company, 44 An. 981. In these cases we decided that the government of the United States, not having asserted by legislative act or judicial construction the forfeiture for the breach of the condition, the apparent legal title is in the railroad company acquiring rights under the foreclosure of the mortgage. In other words the title of the railroad to the lands granted is good against anybody except the government of the United States. We did not discuss the rights of the road as against the Federal government, as our decree would not be binding upon that authority.

In the case of Railroad vs. Sledge the defendant entered upon the railroad land with the intention of acquiring the right to enter the land if ever it should be open to public entry. In this case the defendants made affidavits for homestead entries. But the land was not open for such purposes. The defendants may have been deceived, but this does not alter the character of their entry upon the lands of the plaintiff. They went on them without any color of right or authority and stand in the same position as the defendant Sledge in the case referred to. Possession is solely the prima facie evidence of title. The entry on the land was unlawful, and as no title other than the trespass is exhibited, the defendant can not dispute the apparent title of plaintiff. Stille vs. Shull, 41 An. 816.

Judgment affirmed.

On Application eor Rehearing.

Miller, J.

The earnestness of the argument for a rehearing in this case has prompted us to a careful re-examination and, if our conclusions prove disappointing to the defendants, we trust they will be accepted as the result of a diligent effort on our part to give to the controversy, previous phases of which have been before us, our best attention.

"When defendants, sued for land, hold by different titles, they can not, as a general rule, be joined because their defences,, necessarily, are different. In this case the defendants exhibit no title whatever, common or individual. There is, it is true, on the part of some of the defendants the averment that they made homestead entries cf portions of the lands, but, in our view, such entries, even if sustained by proof, would not, under the circumstances of this case, distinguish the position of those who assert such entries from that of trespassers. Hence we have the case of plaintiff asserting title to a tract of land on which various persons have settled. The defendants are not distinguished by any difference in the titles they hold, for they hold none. They stand on one common ground of naked possession. We are aware of no rule or test by which plaintiff could divide his action. On the other hand, all these defendants have a common interest in disputing plaintiff’s title. If plaintiff had brought as many different suits as there are defendants, all could join in the defence, and to the consolidation of the suit there could be no objection. If consolidation to save costs would have been authorized, the propriety is enforced of joining all these defendants in one suit. We think, therefore, the exception of misjoinder is not well taken. Support of this view is to be found in the general rules of pleading and, we are inclined to believe, admits of abundant support in authority. We find one ease in point and those cited in plaintiff’s brief, to which we have not had access, seem to sustain the pleadings in this case. Derbes vs. Romero, 28 An. 644; 16 H. 288; 18 H. 263; 2 H. 642. In the cases of Gaines vs. City of New Orleans etals. the defendants, charged as possessors in bad faith, were joined in one bill, as we remember the cases. Gaines vs. Agnelly et als., 1 Woods, 238; Gaines el als. vs. City of New Orleans, 1 Woods, 104.

The defendants put at issue the corporate capacity of plaintiff. The Vicksburg, Shreveport & Texas Railroad Company was created in 1853 to construct a railroad from the Texas line to Vicksburg via Greenwood, Shreveport and Monroe. In aid of this railroad, or as the act expressed it a railroad,” between these points and the line stated, Congress granted in 1856 alternate odd sections of land for six sections in width on each side of the road. The grant stipulated the road should be constructed in ten years or the lands should revert to the United States. It is not disputed that the grant was accepted by the company, lands selected and the listing approved by the government, as provided by the Act of Congress of 1856. 11 Statutes at Large, 18.

Thereafter, in September, 1857, the company executed and issued bonds to a large amount, secured as usual in railway mortgages on its road-bed, lands and franchises, and the mortgage specially embraced the four hundred and twenty thousand nine hundred and twenty-four acres of land embraced in the grant. On these bonds, extant and unpaid in 1879, by appropriate proceedings in the United States Circuit Court, Fifth Circuit and District of Louisiana, the bondholders foreclosed their mortgage and at the master’s sale under the decree of the court acquired, through a committee selected by them, the railroad, its lands and franchises covered by mortgage.

We do not appreciate that any objection is or can be urged to these, proceedings. They exhibit the usual method by which railroad franchises are transferred when bondholders exact their rights.

It has never been supposed that such proceedings end the corporate existence, for, if this were the case, railroad mortgages would confer no rights and railroad bonds disappear as securities. It must be accepted, then, that the sale passed the corporate franchises, to the purchasers. In that condition the purchasers availed themselves of the Act No. 38 of the Legislature of 1877, which authorizes, the purchasers of railway property and franchises to hold all such property and operate the railroad the same as the company that executed the mortgage. The act further authorizes the purchasers to fix and divide the stock bought, adopt a name and organize anew the company by electing a board of directors. When all this was effected the act provided for the filing of the organization certificate in the office of the Secretary of State, and, this done, the act declares the company shall be deemed a body corporate under the name chosen as fully as if chartered anew by the Legislature. We find from the record that all these ■ provisions were complied with by the purchasers, and the corporation once known as the Vicksburg, Shreveport & Texas Railroad Company has beceme the Vicksburg, Shreveport & Pacific Railroad Company, if there is any virtue in the judicial proceedings to foreclose the mortgage and the Legislative Act of 1877. There was no creation of any new corporation, but the continuation of a subsisting corporation under a new name. The act has stood unchallenged for years, nor is the court advised of any ground on which it can be assailed. It is not of easy application that there can be repugnancy to the organic law and legislation of this character, so necessary to give effect to the changes so apt to occur in the operation of railroads. The court conceives the present Vicksburg, Shreveport & Pacific Railroad Company must be deemed clothed with all the rights of its predecessor, and is a subsisting corporation and is competent to stand in judgment.

Nor can it be denied that the lands sued for in this case are embraced in the grant of 1856. Unless that grant has been withdrawn or annulled, the present corporation is vested with title to the lands. These defendants insist the lands have reverted to the United States by the lapse of time — i. e., the ten years. That the company did not build the road on the original line; that the Legislature of Louisiana has declared the grant forfeited, and other defences are advanced assailing the right of the corporation to the lands granted. It is true the railroad was not completed within the time stipulated in the grant. It is also true, we believe, there was a deviation from the line originally designed for the road. But it is equally true the road has been completed and the United Statef has never insisted on any cause of forfeiture and has never forfeited the giant. Prom time to time the certificates of the completion of the road have been filed in the office of the Commissioner of the General Land Office, and, though long after the ten-year limit, have been accepted as satisfactory evidence of compliance with the grant. So long as the grantor interposes no objection, we can not perceive the right of defendants to urge non-compliance with conditions we must deem waived by the grantor. We do not enlarge on this point because, in our view, unnecessary, especially in view of the elaborate decisions in 41 An. 896; 42 An. 1007, and 44 An. 981.

Nor can we understand how the State of Louisiana can forfeit lands or declare annulled the grant of 1856. The State has no interest. It was the trustee under the act of 1856, but its functions have long since ceased, and before the legislative act in Which it undertook to annul the grant. 44 An. 981.

We have given careful attention to the claims advanced in behalf of some of the defendants that they hold under homestead entries. If such entries had been made they would have been in the face of the grant and with the implied notice that the grant stood, notwithstanding all conditions and limitations, unless insisted on by the United States. In our view the proof fails to show any homestead entries except those held for cancellation by the officials of the land office. In our opinion the defendants stand simply as trespassers without title. It is well settled within our jurisprudence that claims for improvements by defendants in this position are admitted sparingly. We find no evidence in the record that defendants have made improvements of that character that some cases have recognized as affording a basis for a claim against the owner. 16 La. 414; 3 R. 317; 12 R. 254. But, waiving this question, it is settled that trespassers, without title and without knowledge or presumed knowledge of the title of the owner, owe fruits from the date of their possession, and we see no objection to the verdict and judgment that compensates any supposed liability for improvements by the claim of plaintiff for rents and revenues. 7 N. S. 112; 6 R. 192; 12 R. 256. The verdict was for plaintiff, with the addition of compensating the claim for improvements with that for revenue; judgment followed the verdict and both substantially responded to the issues, and we do not think the objection of the defendant on this ground is well taken.

It is undoubtedly better that juries should be kept together after the charge and it is impliedly required by the Oode. But merely because in this case there was a separation, we do not think the verdict should be set aside.

Rehearing refused.


author: MoBnery, J.

text:
    No. 1285.
    W. B. Land vs. Sarah E. Martin, His Wife.
    Appeal from the Sixth Judicial District Court, Parish of Rich-land. Ellis, J.

   The opinion of the court was delivered by

MoBnery, J.

Action for divorce.

Judgment of lower court reversed.

The case only involved facts.


author: Breaux, J.

text:
    No. 1291.
    The State of Louisiana vs. Peter Louis.
    Robbery in one Count and Shooting iviti-i intent to Murder in another Count. — Tlie accused was charged in an information with robbery in one count, and shooting with intent to murder in another count.
    A general verdict of guilty was found against him.
    After conviction he interposed a motion in arrest of judgment.
    After hearing upon this motion the prosecutor entered a nolle prosequi as to the first count, and the court sentenced the accused under the second count.
    A Defective Count. — The verdict embraced the two counts of the information, and although the first count was vicious the verdict is not disturbed as to the count that is good.
    The effect is the same as if the vicious count had been quashed as defective. The accused was sentenced under the good count.
    Surplusage. — The defendant was charged in the second and good count with shooting with intent to murder, under circumstances other than those mentioned in Sec. 790 of the Revised Code.
    The “robbery” charged in the first count was surplusage in so far as related to the second and good count.
    THE Section under which the Information was Framed. — The accused was not prosecuted under Sec. 790 of the Revised Statutes.
    The information was framed under Sec. 791 of the Revised Statutes, and complies with the requirements of that section.
    PPEAL from the Twentieth District Court, Parish of Ascension. Guión, J.

      J. P. Madison, District Attorney, for the State.

      R. N. Sims for Defendant and Appellant.
   The opinion of the court was delivered by

Breaux, J.

The information filed in this case in two counts charges, that one Peter Louis, late of the parish of Ascension, on the 24th day of September, 1893, upon Leberte Oorsico feloniously did make an assault, and him, the said Oorsico, in bodily fear and danger of his life, then and there feloniously did put; six dollars of the money, chattels and goods of the said Leberte Oorsico from the person and against the said Leberte Oorsico then and there feloniously did steal, take and carry away, contrary to the form of the statute of Louisiana, in such cases made and provided, and against the peace and dignity of the same; and the said District Attorney aforesaid, who prosecutes as aforesaid in the Twentieth Judicial District Court in and for the parish of Ascension, gives the court here to understand and be informed that said Peter Louis aforesaid, late of said parish, at the same time and place, having, as aforesaid, assaulted and robbed said Leberte Oorsico, did then and there with force and arms, in said parish and within the jurisdiction of said court, wilfully, feloniously, and of his malice aforethought, shoot one Leberte Oorsico in the peace of the State then and there being, with a dangerous weapon, to-wit: a pistol, with the intent the said Leberte Oorsico then and there feloniously, wilfully and of his malice aforethought to kill and murder.

The accused was tried and found guilty.

From a sentence condemning him to be imprisoned in the State penitentiary at hard labor during twenty years, the accused prosecutes this appeal.

In his motion, in arrest of judgment, the defendant averred that the first count of the information does not set forth the commission of a crime, and that the second count does not allege the commission of a crime in connection with the offence charged in the first count; that it charges a distinct offence without alleged identity between the person referred to in the first count as having been robbed and the person referred to in the second count as having been shot; that & prosecution under Art. 809, Revised Statutes, is wholly inconsistent with a prosecution under Art. 791, Revised Statutes, under which sections the State has declared.

After this motion in arrest of judgment had been submitted to the «court for decision, the State entered a nolle prosequi as to the first count of the information, and sentence was thereafter passed upon the accused as to the second count.

In an assignment of errors, filed before this court, the defendant, through counsel, submits the following points:

1. That the withdrawal of the first count eliminated from the crime charged the essential ingredient of robbery, and he could not be sentenced under Sec. 791 of che Revised Statutes..

2. That the verdict and sentence are ultra vires, null and void, because defendant could not be held to answer to an information charging him with shooting with intent to murder in the perpetration of the crime of robbery. That the State could proceed against him on such a charge only by indictment.

A DEFECTIVE COUNT AND A GOOD COUNT.

All the grounds, briefly stated, in the order presented are:

1. That the State could not enter a nolle prosequi as to the defective count and sustain application for sentence on the remaining count.

The defendant pleaded to the information without calling on the prosecutor to elect and without motion to quash.

He was found guilty on each count.

The first being vicious was abandoned, the second remained.

The charge in the first count was treated as surplusage and withdrawn. It being separate and distinct from the good count, it could be quashed and the accused sentenced under the former.

Mr. Wharton, in his work on Criminal Evidence, p. 138, says:

“ All unnecessary words may on trial or assent of judgment be rejected as surplusage if the instrument would be good on striking them out.”

This court has approvingly quoted this section as applying to the quashing of vicious counts. The State of Louisiana vs. Thomas Brown, 35 An. 1058.

The effect in this case of entering a nolle prosequi as to the vicious count after a general verdict of guilty is the same as if the vicious count had been quashed.

The text writers, upon the subject, and jurisprudence unite in announcing that a bad count may be quashed without affecting the prosecution under the count not vicious.

If an indictment contains a good count a motion to quash should, as to it, be overruled. 30 An. 403; Whar. Crim. Plead., Sec. 394; 1 Bishop, Crim. Prac., Sec. 764.

2. SURPLUSAGE.

That the nolle prosequi as to the bad count carried with it the essential ingredient of robbery found in the second count, and that, in consequence, he could not be sentenced.

We have not discovered the merits of this point.

The section under which the information was framed provides that “whoever shall shoot * * * with intent to commit murder, under any other circumstances than there mentioned in the preceding section, shall, on conviction, suffer imprisonment at hard labor, or otherwise, for not less than one nor more than twenty-one years.” R. S., Sec. 791.

Shooting with intent to murder under other circumstances than those mentioned in Sec. 790 of the Revised Statutes is the crime charged in the information and of which the accused was pronounced guilty.

Robbery is not one of the ingredients of the crime for which the accused was sentenced, and the “robbery” set forth in the bad count was surplusage in so far as related to the second and good count.

3. THE SECTION OF THE REVISED STATUTES UNDER WHICH THE INFORMATION WAS FRAMED.

That the second charge, which has direct reference to the first charge of robbery, comes within the provisions of Sec. 790 of the Revised Statutes, and the prosecution for that crime is limited to indictment (Cons., Art. 5) and is not possible by information.

The second count — i. e., the good count, contains a mere reference to the charge in the first or bad count. In setting aside the first count the charge of robbery was eliminated altogether. It is no part of the gravamen of the second count, and the reference to it was properly treated by the trial judge as mere surplusage.

He was not charged with “ lying in wait ” nor with robbery, and therefore was not prosecuted under Sec. 790, requiring presentment or indictment by grand jury.

He was prosecuted under Sec. 791 and found guilty of shooting with intent to murder under other circumstances than those mentioned in the preceding section — a crime which may be charged by information of the prosecuting officer.

The foregoing are the grounds urged to reverse the proceedings of the District Court. They do not establish that error has been committed on account of which the appeal should be reversed.

Judgment affirmed.