text:
    No. 11,572.
    Aaron Armstrong et al. vs. Vicksburg, Shreveport & Pacific Railroad Company.
    1. Where five persons unite in an action claiming ten thousand dollars damages against another for malicious prosecution and arrest, based on an affidavit charging them together with a violation of the 758th section of the Revised Statules, the defendants against whom the judgment has been rendered properly appealed the case to the Supreme Court.
    2. There may be illegal opposition and resistance to the execution of the process or order of court, without the application of actual physical force or the use of words. Any conduct which would place the officer executing the order in bodily fear or terror, would be guilty of the illegal opposition and resistance contemplated by the law. Threats may be communicated by signs, by tones of voice, or by actions as fully as by word of mouth.
    3. Whereupon an affidavit against certain parties substantially true as to its facts, and where a District Judge, learned in law, before whom the affidavit is made, affixes a certain legal character to the acts charged therein, and issues a warrant of arrest as for violation of a particular statute — for acts that fall under that statute — but he subsequently discharged the prisoners under the specific charge by reason of a change of opinion by him as to the fallacy thereunder of the facts stated, the warrant and proceedings thereunder do not furnish the basis for a malicious prosecution and arrest.

      APPEAL from the Fifth District Court, Parish of Ouachita. Riehardson, J.

    Aaron A. Armstrong, J. Van Harper, Isaac J. Brooks, Martin H. Hunnicutt and A. J. Bush join in a petition, in which they pray for a judgment of ten thousand dollars against the defendant company, as damages for a malicious prosecution. The action is founded upon the following allegations:
    That on the 28th of August, 1893, they were arrested by the sheriff of the parish of Ouachita, under a warrant issued by the Judge of the Fifth District Court which was based on an affidavit made before him by J. T. Howard and J. A. Mhoon, charging petitioners with being armed and having resisted an officer with force and threats, and thereby preventing with violence said officer, J. A. Mhoon, from executing the order and process of the judge of said court; that said affidavit was false and malicious. That they were compelled thereby to leave their homes and attend court, at Monroe, a distance of twenty miles from their homes, on the 2d of September, for the purpose of standing a preliminary trial under said charge and arrest; that on said day the parties who had instigated and instituted the said prosecution failed to be present, and petitioners were compelled to give bond for their appearance on the 9th September, when they again appeared and were tried before the judge sitting as a committing magistrate, and after full hearing and argument the judge discharged them, decreeing that there was an absolute want of cause to justify the arrest; that said affidavit was written and prepared entirely by F. P. Stubbs, attorney, agent and counsel for the defendant company; that in preparing said affidavit and actively instituting and urging said prosecution against petitiouers, said F. P. Stubbs was representing said company and acting for their benefit and interest, and within the scope of his powers as their attorney and representative; that both Howard and Mhoon were employés of said company, and made said affidavit under the influence, direction and advice of said Stubbs for the benefit of said company, and as a part of said company’s scheme and design to oppress, abuse and coerce petitioners; th&t said prosecution and arrest were malicious and withoutjproper cause. That they had not made any threats against Mhoon, nor used any force and violence against him, and he and Howard and Stubbs were well aware that they had not violated or attempted to violate any law of the State of Louisiana, but to the contrary, without being armed, had peaceably and quietly requested said surveyor to desist from trespassing upon their premises. That said surveyor was in the employment and pay of the railroad company and engaged during the entire 26th of August, as aforesaid, in making a private survey of lands claimed by said railroad company and not included in the ex parte order of survey, as said prosecutor well knew.
    That said arrest; and prosecution were made and instituted not for the purpose of vindicating the law, but for the vindictive purpose of coercing petitioners and others to recognize the claims of the railroad to the land claimed by them, and to enforce the surrender of said lands to the agents of said roads.
    That said railroad, its attorney and agents have been harassing and worrying the entire community in ward 9 to compel them to deliver possession of lands claimed by said railroad for which they have brought petitory actions, and recognize the defendants’ rights to remain in possession until said actions are decided; that said attorney and said agents, in pursuance of their malevolent and lawless designs to coerce the people of said community, selected petitioners as victims and examples, in order to terrorize and intimidate petitioners and all their neighbors in the interest and for the benefit of said roads and its agents.
    That they were damaged by said false and malicious prosecution in the sum of ten thousand dollars in loss"'vof time and the expense of attending court and employing counsel to defend them, in damage to their crops during their absence, in vexation, worry and in physical and mental suffering caused by this illegal, unwarrantable and vindictive and malicious prosecution; that they are peaceable, hard working, law abiding citizens (farmers),. with good characters for sobriety, honesty and fideltyto the duties of good citizens, which the railroad company and its agents well knew; that the false charge that they were law-breakers and criminals was slanderous and injurious to their good names and damaged your petitioners as above set forth.
    Defendants denied each and every allegation of plaintiffs’ petition and insisted upon strict legal proof. Further answering, it specially denied that it is legally liable for the acts of any agent outside of the scope and purposes of his employment. Further, it denied the truth of the allegation that the proceeding complained of was without cause and averred that the allegations that said proceedings were malicious are wilfully and maliciously false and were so known to be by the counsel who wrote them.
    The jury returned a verdict in favor of the plaintiffs for twenty-five hundred dollars damages. Defendants “moved the court to set aside the verdict rendered because the same is contrary to the law as given by the court and to the facts of the case,” alleging “that it was clearly established that the defendant not only believed that there was probable cause, but in fact there was undoubtedly probable cause for the same, whereas the clearest and latest authorities require that to sustain such an action the prosecution ‘must have been instituted without any probable cause.’ Brelet vs. Mullen, 44 An. 194.”
    The court overruled the motion and rendered judgment against the defendants in conformity to the verdict and they have appealed. Plaintiffs moved to dismiss the appeal for the reason assigned that this court is without jurisdiction ratione materise.

      Gunby & Sholars, Newton & Madison and F. Vaughan Attorneys for Plaintiffs and Appellees:
    Where several plaintiffs, having a common cause of action, unite in the same suit, each claiming an amount not exceeding two thousand dollars, but the aggregate of their claims being in excess of two thousand dollars, the Circuit and not the Supreme Court has jurisdiction of the appeals. 30 An. 609.
    An action for malicious prosecution or for false imprisonment may be maintained against a corporation. 22 Am. and Eng. R. R. Cases, 366; 26 Am. and Eng. R. R. Cases, 121, 122; 99 Ind. 519; 22 Conn. 530; 1 Am. and Eng. R. R. Cases, 571; 4 Mo. 505.
    A corporation is responsible for the acts of an agent performed while engaged in the discharge of duties within the general scope of his agency, although the particular act was wilful and was not directly authorized. 26 Am. and Eng. R. R. Cases, 122; 92 Ind. 371; 13 Am. and Eng. R. R. Oases, 1.
    A corporation that entrusts a general duty to an agent is responsible to an injured person for damages flowing from the agent’s wrongful act done in the course of his general authority, although the agent may have disobeyed instructions. 26 Am. and Eng. R. R. Oases; Story on Agency, 73; 46 N. T. 23; 14 Am. and Eng. Ency. of Law, 40.
    The principal is liable for the acts of his agent in the course of his employment and for the principal’s benefit, even though he has given no special instructions to do them. 2 Greenleaf on Evidence, 449; Addison on Torts, 31, 32; Cooley on Torts, 536; 40 An. 91; 14 Am. and Eng. Ency. of Law, 25.
    Masters and employers are answerable for the damages caused by their servants and overseers in the exercise of the functions in which they are employed. O. C. 2320; 40 An. 88.
    A corporation is liable in damages for a malicious prosecution instituted by one of its officers or agents. 14 Am. and Eng. Ency. of Law, 40.
    The discharge of the accused by committing magistrate is prima facie evidence of the want of probable cause, sufficient to throw on defendant the burden of proving the contrary. 34 An. 246; 36 An. 104; 24 An. 330; 2 Greenleaf on Evidence, 455.
    Malice is inferred from want of probable cause. 4 An. 377; 6 An. 577; 9 An. 219; 15 An. 421; 33 An. 392; 42 An. 955; 41 An. 304.
    The wanton and causeless injury of an individual is in itself a malicious act. 4 An. 377; 6 An. 578.
    Public order and the highest interest of society require that no violence shall be done to one in peaceable possession of property. 44 An. 816, 818, 819.
    Where criminal prosecutions are instituted not to vindicate the law but to coerce payment of debt or restitution of property, malice is conclusively presumed. 14 Am. and Eng. Ency. of Law, 48.
    An officer charged with the execution of an order or process of court must give notice to party against whom directed, of its nature and purport and of his official capacity to execute it Wharton’s Orim. Law, Vol. 1, pp. 549, 552.

      Stubbs & Bussell, Attorneys for Defendants and Appellants,
    cite l 3 R. 17; 12 An. 333; 15 An. 421; 27 An. 339; 33 An. 915; 40 An. 374; 44 An. 194; 2 Greenleaf, 449; 14 Am. and Eng. Ency. of Law, 17.

      Probable cause is such a state oí facts and circumstances as would create in the mind of a man of ordinary caution and prudence an honest and reasonable belief of the guilt of the party charged. It does not depend on the actual stage of the case, in point of fact, but upon the reasonable and honest belief of the prosecutor. 8 An. 12; 10 An. 537; 12 An. 333; 13 An. 274; 33 An. 915; 34 An. 1147; 36 An. 441; 38 An. 161; 40 An. 374, 1268; 44 An. 936; 2 Greenleaf, 453; 97 U. S. 645; 24 How. 551; 3 Wash. 37; 1 Me. 135; 2 Den. 617.
    Acquittal or discharge not proof of want of probable cause. 3 R. 17; 8 R. 150; 34 An. 1268; 41 An. 511; 98 U. S. 195; 2 Green-leaf, 455.
    Advice of counsel, under a full and fair statement of fact, followed in good faith, evidence of probable cause. 9 R. 421; 8 An. 12; 11 An. 290, 418; 15 An. 422; 2 Greenleaf, 459.
    If defendant show probable cause, there must be judgment in his favor. 15 La. 298; 8 An. 12; 11 An. 418; 12 An. 333, 714; 28 An. 325; 29 An. 368.
    The authority or a qualification of a defacto officer, or the sufficiency of a writ entrusted to him for execution, can not be denied by third parties. 10 An. 524; 28 An. 82; 39 An. 820; 36 Ala. 273; 79 Ala. 39; 82 Ga. 535; 17 Am. and Eng. Ency. of Law, 17.
    Threats, with the ability and apparent intention to execute them, may well constitute resistance. 3 Wash. C. O. 335, 169; 43 Md. 490; 1 Dill. 17.
    To fix liability on a corporation for unlawful acts of its employé, it must appear that the employer was expressly authorized to do the act, or that it was done in pursuance of a general authority in relation to the subject of it, or that the act was adopted or ratified by the corporation. Ang. and Ames Oorp., Sec. 311; 51 Md. 290; 28 Atl. Rep. 615; O, R. R. vs. Brewer, 33 An. 58; 38 An. 631, 705.
    Actions for malicious prosecutions are not encouraged by the law and must be cautiously entertained. From motives of public policy the prosecutor must be protected. 3 R. 20; 3 L. 278; 15 An. 605; 40 An. 374; 41 An. 511; 44 An. 194, 939.
   On the Motion to Dismiss.

The opinion of the court was delivered by

Nicholls, O. J.

Appellees would place this case before us as if five different individuals having separate and distinct causes of action against a'particular corporation had brought in the same petition five distinct demands against it, and had each obtained against it a separate and distinct judgment in his favor. It is argued that the demand of each of the plaintiffs against the defendants was really for two thousand dollars, and that by the judgment appealed from, the District Court adjudged to each of them the sum of five hundred dollars.

Are appellees justified in this contention?

We think not.' The plaintiffs did not, for reasons of convenience and economy, and because the testimony taken in respect to any one of them would be to a great extent the same testimony as would be taken in respect to the others present themselves in the District Court urging separate demands and asking separate relief though advanced in the same petition. They did more than this — they appeared before the court as plaintiffs, all uniting in taking up certain acts complained of as having given rise to a single cause of action, in favor jointly of the five, and as entitling the five to a joint judgment of ten thousand dollars, and when a judgment was rendered in the case it properly followed the pleadings, and the prayer, as a judgment upon a cause of action declared upon as a single one, and in which the five plaintiffs were jointly interested.

This judgment, was it to go to execution, would have to be executed according to its terms, as a single joint judgment for twenty-five hundred dollars. The plaintiffs having control over their own pleadings, free to urge their rights as they themselves held and determined them to be, thought proper to proceed in the manner they have done. Whether they -were right or wrong in so doing is not a question at present before us.

Having proceeded to judgment in the lower court as joint plaintiffs they can not in this court claim to have, separate and distinct judgments and in separate and distinct causes of action, and to separate and divide the. judgment into five parts of five hundred dollars each. Whatever appellate court would pass upon the judgment in the case would have to pass upon it as rendered — that is, as a single judgment for twenty-five hundred dollars. Appellant would be utterly without authority for the purposes of appeal to split the judgment up into five judgments for specific amounts, even if it thought it to be to its interest and desired to do so. It would have to deal with the judgment as it was made. Appellees claim that if this judgment was paid in full as rendered each of the five plaintiffs would be entitled to receive five hundred dollars and no more. We are not called on to say what each plaintiff would be entitled to receive from the judgment on a settlement inter se, if it was paid in full. The judgment itself determines that the five are to receive two thousand five hundred dollars, and not that each is to receive five hundred dollars, and it is with the judgment as such and prior to payment that we are .dealing. We can say in this as was said in Shields & Thomas, 17 Howard, 3, that so far as the appellant is concerned the entire sum found due by the lower court is in dispute. It-disputes the validity of that decree and denies its obligation to pay any part of the money. If the judgment should stand as rendered defendants will be made liable to pay the whole amount decreed to the plaintiffs. That is the controversy on its part, and the amount exceeding two thousand dollars we have jurisdiction in respect to it. Heirs of Ballio vs. Prudhomme, 8 N. S. 338; Bowman vs. City of New Orleans, 27 An. 501. Motion to dismiss refused.

On the Merits.

In the year 1892 the District Judge for the District Court of Ouachita parish issued eleven orders in eleven petitory actions, which had been instituted by the Vicksburg, Shreveport & Pacific Railroad Company, in his court, directing the making of surveys of the property involved in that litigation and the making of due return to the court. The orders were granted ex parte upon the application of the plaintiff, in which it was alleged that since the filing of the suits it had had in its service competent surveyors running the lines of boundary of the lands in controversy in the causes, for the purpose of establishing the lines and ascertaining the occupancy vel non of said lands by the defendants; that while engaged in said •work the defendants conspired together to intimidate and drive plaintiffs’ employés away from the lands, and by threats and personal violence prevented the surveyor and his assistants from making the survey: that under the circumstances a survey of the land in controversy was necessary to locate the lines and ascertain the names of the occupants thereof; that there was no parish surveyor for Ouachita parish, and that it was necessary for the court to appoint some competent surveyor to make said survey and the parties should be notified.

Shortly after these orders were issued, James A. Mhoon, who had been designated therein as the surveyor to make the survey, undertook to execute the orders; but, after making a partial survey, he abandoned the work and returned to Monroe, where he had an interview with the District Judge. This interview resulted in an affidavit by Mhoon and one Howard, who had accompanied and assisted the former in bis survey, the affidavit being taken before the judge himself. In this affidavit the affiants declared that, acting under the orders above mentioned, they had on the 25th and 26th of August, 1893, proceeded to survey and mark the lines of certain real property claimed and owned by the Vicksburg, Shreveport & Pacific Railroad Company, being in the odd sections in township 16 north, range 2 east, in ward 9 in said parish, and that on the 26th of said month A. A. Armstrong, J. V. Harvey, I. J. Brooks, M. Hunnicutt and A. J. Bush, being armed and aided and assisted, advised and abetted by a large number of other persons unknown to affiants, in pursuance of their expressed purpose did then and there by force and threats resist and oppose and prevent the said J. A. Mhoon under order of said court while surveying and attempting to survey, and execute the order of said court.

The affiants in the affidavit gave a list of the various orders under which they were acting. Upon the making of this affidavit the District Judge issued a warrant signed by himself, directing the sheriff of Ouachita to arrest the said trespassers and bring them before him for preliminary examination, and to keep them safely in his custody until discharged by law, the warrant reciting that due proof had been made before the said judge by the affidavit of John T. Howard and James A. Mhoon that on the 26bh of August, 1893, the said parties did unlawfully resist by force and threats one James A. Mhoon, an officer of the Fifth Judicial District Court of said parish, in the execution of an order of survey in certain cases therein pending and to him directed by the presiding judge of said court', contrary to law in such cases made and provided.

It appears by the endorsement of the sheriff on his warrant “ that he received the same on the 28th of August, 1893, and proceeded to execute the same by arresting the parties named in said warrant, and released them on parole, they to appear béfore the judge of the Fifth Judicial District Court to undergo preliminary examination.

The parties named presented themselves shortly afterward at Monroe under their paroles for the purpose of a preliminary investigation, but in consequence of some misunderstanding as to the date of the same, the matter was postponed to a date fixed, the parties giving bond to appear at that time.

Upon the day so fixed a preliminary examination was had and evidence taken, and the District Judge being of the opinion that the testimony did not justify the holding of the parties they were discharged. Mhoon, the surveyor who had made the affidavit, was not present at this investigation, he being, it was said, at the time in another parish, confined to his room by sickness.

The District Attorney has since made no attempt to bring the matter before the grand jury, though it has been several times in session, and from his testimony it appears he has abandoned all idea of doing so in the future, stating that when a person has been discharged after a preliminary investigation he has found the effect to be so prejudicial to a subsequent prosecution before a jury, that he generally takes no further action in such cases.

The present litigation owes its origin to the facts just above stated. As a general rule, a petitory action and any incidental orders given therein would excite no special interest beyond the parties themselves. The eleven cases of which we have spoken are exceptions to this rule, for the reason that the title advanced by the plaintiffs would cover, if sustained, thousands of acres of other lands of which large portions are in the possession of others under circumstances more or less similar to, if not identical with those under which the defendants in these particular cases hold the same. The title set up by the plaintiffs is the same which was brought to our notice in the three cases of V. S. & P. R. R. Co. vs. Sledge, 41 An. 896; Kemp vs. Monet, 42 An. 1007; State vs. R. R. Co., 44 An. 981.

The various steps taken by the railroad company in the direction of the assertion of pretensions antagonistic to those of so many persons being in the same immediate neighborhood, doubtless firm in their conviction that plaintiffs’ claims are thoroughly unfounded, and sincere in the belief that their own are well grounded, have engendered, as shown by the evidence, feelings very unfriendly and hostile to the company and its agents, which have led up to active concerted extra-judicial opposition to those steps in the community in which those parties live. There is no necessity, for the purpose of this case, of our going any further back than what occurred on the occasion of Mhoou’s own survey.

The arrival of the surveying party upon the ground was immedi•ately followed by the assembling of a large number of people of the neighborhood.

Harper, one of the plaintiffs, says the object of the meeting was to see how the people could protect their rights and prevent the surveys. Bush, another of the plaintiffs, says: The people felt they had been imposed upon and they discussed together how they could protect themselves in the name of law, justice and order; and Harper, speaking of these discussions, said: “It was just the disposition of the people that the parties who represented them should go in a quiet and peaceful way or manner, without force or any manifestation of violence, tell Mr. Mhoon that it was the wish of the people that he should not make the survey.”

Precisely what was said and done at the meeting is not shown by the testimony, but it is fair to assume that the course subsequently followed conformed to the conclusions reached. Among the different accounts of what occurred, that of Hunnnicuttisthe most detailed, and as it is not very long we transcribe a portion of it. ‘ ‘ It was a Saturday, if I recollect correctly. There was a number of about twenty-five citizens went out in search of these parties making surveys, in order to request them to stop surveying the lands until they could show us and prove to us that they could give a guaranteed title with a United States seal on it, as we supposed they could not, and there was a committee of four appointed to go southeast across in the neighborhood of old man Jeff Hilton’s, and also across Mr. Campbell’s, and the committee consisted of Mr. George, Mr. Cox, Mr. Pranton and Mr. Campbell— that was the committee appointed to go down there. We were to go out by Mr. Davis’, or rather close to Mr. Davis’, to wait for these people to come from below. We went there because it was a good deal nearer, as they had been surveying in there, and we did not know where they were. Mr. Armstrong was also with us, and as we drew near Mr. Davis’ by some source, I can not say how, it was mentioned that they probably might be at Davis’ or probably go there, as it was Saturday and they would probably be going home. We decided after Mr. Armstrong went up to the house and inquired for his dogs, to wait for him until he got back. The road went to Davis’. We waited for Armstrong. While he was gone we decided we had better see what they had to say. When he came back he stated that Mr. Howard was there, and when he came back we had found them unexpectedly, and then appointed a committee consisting of Mr. Harper and Mr. Brooks to go and talk to them, and they did so. They went and stayed right smart while we wondered why they had gone and stayed so long; as it was gradually getting late along in the evening, I was sent up there to find out what they were doing. I went by myself this time. I went up there and found they were talking about matters generally, and I went back and told the people that they. were not through talking yet. They got through and came back and reported that the surveyors had said that if it was the request of the ¡people that they would not make surveys, but would go somewhere else and survey, was my understanding, and on this they appointed me and Mr. Bush to go and tell them that it was the wish of the people for them not to make any more surveys, until they could show the proper authority, that is until they could show us a deed with the United States seal on it, and we went up and delivered the message. We supposed that they agreed to go out if the people said so, and the people did agree that they wanted them to go. I never said anything to it that day. Mr. Bush said we agreed to it, and that the people wanted them to go out and stay out until they could show proper authority. They asked Mr. Brooks, whom we represented, and he said: ‘I represent the people at large.’ On their saying they would go, we turned back and went home, being very well satisfied with their agreeing not to molest us any more, as they had said they would go out. He further says that Mr. Bush said to them (the surveyors), ‘ We suppose you agree to go if the people say they wish it?’ They said: ‘ Yes, we do.’ He told them that we had reported and they sent us a committee back, and that they must go out and stay out. That this was said in a mild tone; there were, no harsh words on either side — no threats and no violence used.”

Armstrong, in his testimony, said that when, after ascertaining that Howard was at Davis’ house, he joined the body of men that Hunnicutt refers to; he found them about a quarter of a mile from Davis’, at a branch watering their horses. That there were fifteen of them, may be more; that they were all together in the road; that some were on their horses and some holding them; that he had a gun and no one else had.

Gallaway, one of the witnesses, and a chainman for the surveyors, states that the main body of men was some two hundred yards from Davis’; that returning from work on Saturday at 12 o’clock, and going to Davis’, he saw the men distinctly; that they were behind a hill; that some were standing, others sitting; that he saw several guns in the crowd, he would not say how many; that when he got to Davis’ he found two were talking to Howard; that Mhoon had a conversation with Mr. Harper; Brooks still stayed there and talked. While they wtre talking a man came up the hill, and “hollowed ” to come on and not to stay all day, and soon after these two men made off. A few minutes after, Mr. Bush and Mr. Hunnicutt rode up and told Mr. Mhoon. I suppose they were addressing him that the committee had reported, and that they did not recognize his authority and he must get out and stay out of there, and furthermore you must stay out. That the man who went up and “ hollowed ” to Mr. Harper and Mr. Brooks to come away and not stay all day had a double-barreled shotgun — he was quite sure of it.

Bush, speaking of the interview at Davis’ house, said: “Mr. Mhoon called Mr. Hunnicutt and I off, and I told him that it was the wish of the people that he quit his survey and get out and stay out;” also that “Mr. Harper told him that he represented the people; that it was their wish for him not to run the sxxrvey; that we were there as a committee to tell him to get off, and stay off, and not run the lines.” Bush, Brooks, Harper and Hunnicutt all testify that there were no threats made, nor force, nor violence used, and it is claimed by the plaintiffs that the interview between the committee and Mhoon was of a friendly character, not at all aggressive.

Mhoon himself did not take that view of the situation. His conduct and his testimony both showed that he considered it the part of prudence and discretion to at once abandon his work and return to Monroe, and this he did without delay, reporting to the judge, as has been stated.

Mhoon testified that Harper and Brooks called on him at Davis’ house; that they told him they were a committee to wait on him; that he asked Mr. Harper to step to one side; that he told him that he had been appointed by the court to go there and do some surveying, anAj¿hy,t he wished to do it; that Harper said the people did not want Jme surveying done, and did not intend to have it done; that he, Itthoon, told Harper of his intention of going to Monroe that evening, and expected to return on Monday, and that he wanted to know if the people would let him finish the work. That at about that time some one down the road “ hollowed ” to him and asked him if he was going to stay there all night, and hollowed to him to come away; that Harper told him as he started to go off thai he would let him know what conclusion they would come to — meaning the people— and left; that in a few minutes, may be five minutes, two others came up, who, he afterward learned, were Bush and Hunnicutt. That Bush came up and remarked that they did not recognize his authority, and that he would have to get out and stay out, and that he left, went up to Monroe and reported the circumstances. He testified further that “he asked Mr. Bush whom he represented, and that he answered that he represented the whole community;” that “he quit in obedience to what he considered a very peremptory order; that he did not see any armed body of men; that the only report he heard of it was from a colored boy. That he abandoned his work and did so because he was ordered to stop the work, and he was afraid to stay there — that he was afraid of all of them; that he had good reason to believe that there were plenty to enforce their order, and he did not propose to stay there and get into any trouble, and he came away; that he did not quit from choice.”

Gallaway testified that after Bush and Hunnicutt left, “we (meaning Mhoon and others) consulted together and thought it best to take down the tent, pack up and go to Monroe, and we went on home.” He also said: “I did not consider it would have been safe to have gone back. I told Mr. Mhoon at the time that I would not go back there.”

Howard was of the same opinion as Gallaway. He testified that on his return to Monroe he reported to Mr. Lee (an agent of the defendants) that under the circumstances he would not go there any more; that he did not think it was safe to go back; that he thought it had got to the place (point) where either he or some one else would get badly hurt.

We may here say, before leaving the evidence in the case, that Harper admits in his testimony, that Mhoon told him that he was acting under order of court.

Under the state of facts disclosed by the testimony it is contended that the affidavit made against these plaintiffs, and the proceedings subsequently taken therein, were malicious, without probable cause, and greatly injurious and damaging to the plaintiffs. Their counsel urge upon us in support of their position the fact that upon the preliminary examination the District Judge, after evidence adduced, discharged the parties; they further call in question the order of survey and the action of Mhoon under it, claiming that it was ex parte; that the work was commenced prior to notice to the parties concerned; that the surveyor had not properly qualified himself by taking oath; that the surveyor had departed from the order of the court in its execution. The plaintiffs in this suit were not parties to the actions in which the orders were given, and are not in position to raise the question they attempt to raise. If there were any legal objections to the orders or the mode of their execution, even the parties themselves would not have been justified in taking the law into their own hands, but should have, through their counsel, used legal remedies which were fully open to them.

The plaintiffs were volunteers in the matter, acting either from sympathy with the defendants in their cases or from personal interests of their own in similar suits, which they anticipate would be brought against them. It is sought to have their action take the form of a mere friendly request to the surveyor to temporarily postpone action, and it is argued that though the parties were charged with armed force and resistance to the order of court, the evidence establishes that no threats were made nor violence and force applied, and therefore the charge made was groundless.

The offence which the warrant was intended to reach was obviously Sec. 785 of the Revised Statutes as amended by Act No. 11 of 1882, which declares that “ Whoever shall illegally resist, oppose or assault any officer of this State while serving or attempting to serve or execute the process, writ or order of any court, or shall assault, beat or wound any other person duly authorized while serving or executing any process, writ or order aforesaid, shall, on conviction, be imprisoned not exceeding two years, at hard labor or otherwise or fined not exceeding one thousand dollars, or both, at the discretion of the court.”

The warrant issued, as we have seen, upon an affidavit taken before the District Judge himself, who had issued the order of survey to Mhoon, after a verbal report by him to the judge of the facts and occurrences connected with the attempted execution of the orders.

A comparison of the affidavit taken by Mhoon with the facts disclosed by the testimony shows it to have been substantially and practically true. There is no doubt that Mhoon, in the work he abandoned, was acting as a surveyor under orders of the District Court, and the conclusion reached by him, that by reason of that fact he was an officer of the court, was one adopted, recognized and acted on by the District Judge. There can be no doubt that the surveyor was, while attempting to execute the orders of the court, prevented from doing so by illegal resistance and opposition, and the only remaining question is, whether the statement made in the affidavit that the parties charged did, by force and threats, prevent the execution of the order, was justified and authorized to be made.

In the first place affiants are not to be held as rigidly bound by the exact terms used by them in an affidavit, as is the State by those in an indictment, particularly when the affidavit is' taken before and scrutinized before being made by a District Judge learned in the law. In the next place the particular words “ force ” and “threats” as used and employed in affidavits and indictments, have not precisely the same scope as when used in ordinary conversation. The words “force and arms” are frequently used when they really add nothing to an indictment. It is a mistake, however, to suppose that in order to constitute force it is always necessary that actual active physical force be applied, or that to constitute “ threats” violent language be employed. Any conduct, in the connection we are now dealing with the word, which would place the officer executing the process of the court in bodily fear or terror is “that force ” contemplated by the law, while “threats” may be communicated by signs or by actions as fully and thoroughly as by word of mouth.

We do not question the testimony of the plaintiffs which declares that no violence was used and no threats were made, when we refer that language to actual force or spoken threats. We think, on the contrary, that the very object of the meeting preceding the interview with Mhoon, was to formulate a plan by which threats could be made to be implied and force to be foreshadowed, without bringing the parties resorting to the methods within the range of the criminal statutes of the State. No one reading the testimony in this record can fail to see that the parties who called upon Mhoon did so with the determination through their actions, and doubtless by the tones of voice of their committeemen sent to him, to impress him, as in fact they did impress him and his party, that they would be in great danger of bodily harm by further prosecution of their work.

It is not customary to make requests in the language used on the occasion of the interview through committeemen, with a body of men near by within supporting distance. It will not do to say for the purposes of this suit, that the display of men (to a certain extent masked) was a mere sham demonstration, and the appearance of one single armed person on the hill an insignificant circumstance. One single armed man would convey to the surveyors, as it was probably intended to convey, the impression that others were also armed, and could as effectually bring about a cessation of the work as the actual fact of the whole party being armed. The surveying party acted on belief and on appearances, and the facts were such as to reasonably bring about the belief.

We are of the opinion that the course taken by these five plaintiffs brought them within the reach of legal punishment. The District Judge thought them at first blush amenable to the statute cited, instead of liable to arrest and punishment for a contempt of his court. We are not called on here to say whether or not, under an indictment under Sec. 785 of the Revised Statutes, they could have been legally convicted; that is not the question before us. Mhoon and Howard made known the facts, and under a justifiable affidavit the District Judge himself designated the charge. If there was any mistake in affixing to plaintiffs’ conduct its legal character, they were not to blame for it, or for a change of opinion by him later on. The conclusions we have reached do away with the necessity of our determining whether or not the defendants would have been legally responsible in the premises had there been really a malicious prosecution of plaintiffs, but it may not be amiss to say that defendants, by its pleadings, would have settled that question for this case. Not content with pleading the general issue they have adopted the action of Mhoon and justified under it, and in their application for a new trial they pressed upon the court that the testimony conclusively showed that they had good grounds for believing the plaintiffs criminal as charged in the affidavit.

The plaintiffs, on the other hand, by their pleadings, admit their participation in the acts complained of in the affidavit, but claimed that their acts were not of the character sworn to. The evidence does away with this claim, and, outside of the pleading's, we are satisfied that plaintiffs’ conduct was such as to protect the parties who took the affidavit, or the defendant corporation from the present action.

For the reasons herein assigned it is ordered, adjudged and decreed that the verdict of the jury he set aside, and the judgment thereon rendered be annulled, avoided and reversed, and it is now ordered, adjudged and decreed that there be judgment in favor of the defendants, against the plaintiffs, rejecting their demand with costs in both courts.

Rehearing refused.


source: Caselaw Access Project

author: Nicholls, O. J.

license: Public Domain

text:
    No. 11,644.
    Zepherin Le Bleu et al. vs. North American Land and Timber Company et al.
    1. Where the husband after the death of his wife disposes in entirety of a particular'piece of community property each of the heirs of the wife has a right of separate action for the recovery of the undivided portion of the property belonging to him and which has been alienated. There is no obligation to make the other heirs parties.
    2. Vendees of community property sold by a husband after the death of his wife without authority^an not drive the heirs of the wife to an action against their father upon the minors’ mortgage. The property remaining in kind, they have the right to recover it in a petitory action. The recourse which minors have against their tutor’s property was granted in their interest, and not as an instrumentality by which their rights could be overridden. Neither tutors nor administrators are permitted as a right to charge themselves with the value of the property belonging to the minors or to successions, and thus shift ownership from the minors and the succession over to themselves.
    3. Where in the settlement made by a tutor with his children a particular piece of community property in which they have a right of ownership was accidentally, erroneously or intentionally omitted, no allusion is made to the same, the rights of ownership of the children in this property is not divested or affected by a receipt given by them ;as in full for the amount conveying to them as shown by the homologated account filed by their tutor, in which receipt it is consented that the evidence of the minors’ mortgage on the tutor’s property be erased. The account and the judgment of homologation extended only to the property and moneys therein covered.
    The mortgage did not cover rights of ownership in property remaining in kind at the end of the tutorship,jof which ownership the minors had not been legally divested.

      i. A document signed by the Registrar of the State Land Office certified to by him to be a correct copy of the record of a patent which issued from that office, is admissible in evidence to show the date of the sale of the land by the State.

      5. An exception to the rule requiring proof by the subscribing witnesses to an act sows seingprivé is admitted where the instrument is not directly in issue, but comes incidentally in question in coursejof the trial, in which case the execution may be proved by any competent testimony without calling the subscribing witnesses.
    6. Where defendant in a petitory action who has been in the exclusive possession of certain property reconvenes directly against a plaintiff, who seeks simply to be recognized as a joint owner with him in the property for the price of the improvements, which he claims ito have been placed on the property whilst having such possession, he is correctly remitted for the ascertainment of his rights to an action of partition between the joint owners.
    APPEAL from the Twelfth District Oourt, Parish of Oalcasieu. Fournet, J.

    Marie Victoria Verret, wife of Alphonse Amédé Oorbelle, to whom he was married in the parish of Oalcasieu in 1867, died on the 4th October, 1888, leaving as her heirs nine minor children, issue of this marriage.
    Two of these children, one a son the other a daughter, died after their mother without descendants and intestate,
    The succession of the wife was only opened in 1888, at which time the father was appointed and qualified as natural tutor of his children after an inventory had been taken of the property of the community between Oorbelle and his wife. This inventory ‘Showed assets real and personal to the amount of one thousand and five dollars.
    Upon the application of the father the minors’ interest in this property was adjudicated to him at the price of estimation, and upon his petition he was permitted, upon the recommendation of a family meeting, duly homologated, to secure the interest of his wards by giving a special mortgage upon the N. % of the ¡3. W. 1-4 of Sec. 25, T. 9 S., R. 8 W., and east part of lot 4 of same section, containing twenty acres, said two tracts of land containing in all one hundred acres, with the buildings and improvements thereon, in lieu of the general mortgage resting on his property to secure the faithful administration of his duty as tutor.
    In his petition praying to be allowed to give this special mortgage, he declared that the succession owed no debts.
    The tutor filed an account of his tutorship, in which he set down as the assets of the community the price of the same property which figured in the inventory.

      This amount he divided by two, placing one-half, orjfive hundred and two dollars and fifty cents, as the wife’s share in this community property. He then charged the minors with twenty-two dollars and fifty cents as their share of cost of inventory and other items of law charges, and declared four hundred and eighty dollars to be the net amount of the wife’s succession. Stating that the heirs of the wife were nine in number- — eight minors, and one minor (Marie Alvina) emancipated by marriage to Zepherin LeBleu, he fixed the share of each heir at fifty-three dollars and thirty-three cents.
    This account was homologated contradictorily with the under-tutor of the minors, and Mrs. Marie Alvina LeBleu, the married heir.
    The latter gave a receipt thereafter to her tutor in full of her share in the succession of her mother, as set forth in the account filed. Declaring therein that her right of mortgage on the property of her father as natural tutor was entirely satisfied, she authorized him to use the receipt as authority for demanding the cancellation and erasure of any mortgage which might be on record, springing from her rights of inheritance from her mother (fixed in said tutor’s account at fifty-three dollars and thirty-three cents).
    The four plaintiffs in the present suit, three of whom claim as heirs of their mother, Marie Victoria Gorbelle, and of their deceased brother and sister, and the fourth as the vendee of Ophelia Corbelle (one of the nine children aforementioned, issue of the marriage of Amédé Corbelle and wife) of a one-seventh interest in the property which forms the subject of the present litigation, claim that'during the existence of the community of acquets and gains, between Amédé Gorbelle and his wife, Corbelle purchased from the State of Louisiana (obtaining a patent for the same at the time) the north half of section six, township ten south, range seven west, Louisiana meridian. That this property fell into the community. That after the death of his wife, and before the succession was opened in court, Amédé Corbelle, ignoring entirely any interest of the heirs of Mrs. Corbelle in that property, sold the same- by three private acts to the defendant company, and that it has now and has always had possession thereof illegally and in bad faith; and that it is accountable for rent therefor; that the action of their father in disposing of the property in its entirety was without right or authority, and that the rights of the heirs of his wife therein have not been divested. They ayer that their father is an absentee living in the State of Texás.

      The prayer is that judgment be decreed in favor of petitioners, annulling said sales in part, and decreeing petitioners to be the owners of seventeen sixty-thirds of said lands, and for further judgment for seventeen sixty-thirds of four hundred dollars, improvements destroyed or removed from the land, and judgment against said defendant company for seventeen sixty-thirds of fifty-four hundred dollars rent for the use and benefit of said land during nine years from 1885, also for seventeen sixty-thirds of six hundred dollars per year for rent from judicial demand.
    The defendant company excepted that, as shown by the petition, all the parties having an interest in the subject matter, and result of this suit had not been made parties to it. The exception was overruled and defendant then filed an answer containing in itself several exceptions which it declares it pleaded in bar of the action. These were: (1) That Amédé Oorbelle, executed August 25, 1888, by notarial act of record, in the office of the clerk of court, ex officio recorder, etc., in the book of mortgages, the special mortgage referred to in plaintiff’s petitions, for the purpose of securing the payment of any rights or claims plaintiffs may have had or might have against said succession, and the said special mortgage being still in force, and none of the plaintiffs having ever sought to foreclose' said special mortgage, the plaintiffs herein have no right of action against respondent.
    2. In bar of the demand of Marie Oorbelle, wife of Zepherin LeBleu, it is pleaded that on or about August 21, 1888, she was paid by Amédé Oorbelle fifty-three dollars and thirty-three cents, in full of her alleged share in said succession, and, being thereby authorized by her husband, receipted therefor in full as aforesaid, and, therefore, she and her husband are estopped from asserting or prosecuting their demand herein, and have no right of action against respondent.
    The company in separate answer pleaded first the general issue. Further it denied specially, that the property ever belonged to the community named in plaintiff ’s petition, or that its own agent knew that it was claimed to belong to said alleged community, and averred that it bought the property in good faith by titles fully warranted in form, and translative of said property, and of the defect thereof, if any existed, or continued to exist, it and its trustees and agent and general manager, Watkins, were ignorant. That when it purchased said property it was of very little value, being very low, wet and swampy lands, but that since its purchase the company had, at great labor and expense, and in absolute good faith, placed improvements thereon to the value, at the institution of the present suit, and at the date of the answer, of not less than twenty-five thousand eight hundred and sixty-nine dollars and seventy cents, the items as to which it specially set up. That it had in good faith paid the taxes on it from 1886 to 1898, and would have to pay the taxes of 1894 thereon when they become due, which taxes as to amounts and dates it specially set out.
    The company averred that it purchased the property from Amédé Corbelle with full warranty of title, and that it was entitled to call its said vendor in warranty to defend respondent’s titles to said property in controversy, and to defend it in this suit.
    The District Court rendered judgment in favor of the plaintiffs, and against the North American Land and Timber Company, setting aside partially as prayed for by the plaintiffs the three sales made by Amédé Corbelle to the company referred to in plaintiff’s pleadings, and recognizing and decreeing each of the plaintiffs to own an undivided ninth of one undivided half, and of one-seventh of three-fourths of two-ninths of one-half of the property in litigation herein, making each of the plaintiffs undivided owner of seventeen two hundred and fifty-two parts of the property in litigation herein, the court recognizing and decreeing the property to have belonged to the community between Amédé Corbelle and wife. The court further decreed that all claims on the part of the plaintiffs in this suit for rent, revenues and values of improvements originally on said land, and all reconventional demands on the part of defendant — the North American Land and Timber Company — for improvements, fruit trees and other ameliorations to said property are rejected as of non-suit, reserving to the respective parties the right to present said demands in suit for partition, or other proper proceedings. It further rendered judgment in favor of the North American Land and Timber Company against each of the plaintiff’s proportionally for repayment to it of the taxes which it had paid on the property from 1885 to 1894. It further decreed and ordered that the demand in warranty by the North American Land and Timber Company be rejected.

      William F. Sohwing for Plaintiffs, Appellees.

      . Thomas T. Taylor and George H. and E. L. Wells for Defendants and Appellants.
   The opinion of the court was delivered by

Nicholls, O. J.

The first question before us is the action of the court in overruling defendant’s objection to the want of proper parties. If the allegations of plaintiffs be true, that the property in question belonged to the community, which was free from debt, and that after the death of the wife the father sold the entire property as his own by private acts, absolutely ignoring any interest therein of his children, each one of these children had the right separately and apart from the others to bring an action for the recovery of the undivided portion of the property belonging to him which had been attempted illegally to be conveyed. These parties might have all joined in one action, but they were under no legal obligation so to do. The act of the father was absolutely null and needed no setting aside. The judicial proceedings in reference to granting a special mortgage on the father’s property had no bearing upon the question of the ownership of this particular property, as [we will hereafter show. The exception was correctly overruled.

The position next contended for in this court by the defendant is that Ophelia Oorbelle (Mrs. John Guillory) having consented to the homologation of the account of tutorship rendered by her father, and received from him the amount going to her as shown thereby giving him the receipt she did, is estopped, as is her vendee, from bringing the present action. The property in question was not placed in the inventory nor in any manner dealt with in the account. The father acted with respect to it as his separate property dehors the succession and the community. If Mrs. Guillory had an absolute vested right of ownership in the property at her mother’s death, that interest was not divested by the fact that in the enumeration of the assets of the community this particular asset was accidentally and erroneously or intentionally left out. The account and its homologation extended only to the property and moneys therein covered. The receipt itself shows on its face that it had reference to those and nothing more. The acknowledgment of Mrs. Guillory that all her rights under the special mortgage had been satisfied and extinguished, and her consent that the inscription of the mortgage in the records so far as she was concerned should be erased, could have been executed and the mortgage erased and extinguished without in the slightest degree, as matters stand, affecting his rights in the property. The evident theory of the defence is that because a mortgage has been given by a tutor to secure the fidelity of his trust to those in whose favor it is given, the minors are necessarily driven to an action upon the mortgage to secure their rights in respect to property of theirs with which he has illegally dealt while tutor. That although property belonging to the minors which has been illegally and unwarrantably sold by him for his own benefit still exists in kind, the parties holding the property so illegally disposed' of can successfully resist the bringing of a petitory action by the owners for the recovery thereof. This contention is totally inadmissible. The law prohibits the sale of the immovable property belonging to minors unless for special reasons and under special conditions and formalities. Civil Code, Art. 389. It contemplates that generally the tutor should preserve that property in kind, and turn it over to the minor when he shall have arrived at his majority.

Neither tutors nor administrators are permitted as a right to charge themselves with the value of property belonging to minors or to successions, and by so doing shift the ownership of the same from the minors and the succession to themselves. To permit them to do so would be to recognize as a legal proposition that a party has the right to violate his legal obligations and legal duty to others, and leave them no redress save practically an action in damages.

In New Orleans vs. the Wardens of the Church of St. Louis, 11 An. 245, this court said, speaking of a somewhat similar pretension: “ This is a doctrine as unsound as it is novel. The violation of a contract may be, and very often is, the ground of an action sounding in damages against the party who has violated the contract, but the claim in such a case is for the reparation of a wrong, and is the very opposite of a recognition of a right to violate the contract.” The recourse which minors have upon the property of their tutors, through the legal mortgage which the law has created in their favor, is a remedy in their favor to be enforced by them for the protection of their rights, and not an instrumentality by which those rights could be overridden and broken down by the tutor.

So far from minors being forced (by reason of the illegal sale of their property by their tutor) to a personal action against him and to an action of mortgage on his property, when the property alienated still exists in kind, it would often, on the contrary, be properly their duty, in the interest of third parties as well as their own, to proceed to the recovery of the property disposed of. In the case at bar the tutor did not go even so far as to charge himself with the value of the land. He sold it without authority, and seems to have repudiated the idea of all liability in the premises. The special mortgage given by the father, under the circumstances of this case, has no bearing upon the issues involved therein. The right of ownership of the plaintiff in the land in litigation is separate and distinct from any indebtedness or liability by the tutor to his minor children. The exception based on a contrary idea was correctly overruled.

On the Merits.

The right of the plaintiffs to recover the joint interest claimed by them in the land described in their petition is unquestionable if they have supported their allegations by proof properly admitted by the court. Defendant denies that such proof has been made.

We think the certified copy of the patent issued by the State to Amédé Oorbelle was properly admitted for the purpose of showing the date of the acquisition of the property by him. This, the plaintiffs inform us, was the purpose of the document. Defendant admits having purchased the property in question from Amédé Oorbelle, and having it still in its possession. By the testimony of its own witness and former manager it has shown that the land was held by their vendor, under a patent which was exhibited to the manager at the time of the first sale, and placed in his possession when the third sale was closed. Both parties claim under the title acquired by Amédé Oorbelle. The plaintiffs do not deny that Oorbelle purchased this property in its entirety, nor do they deny that he could have legally sold in its entirety had not circumstances arising subsequently to its acquisition intervened and changed the legal situation. They simply maintain that after the title had been vested in Oorbelle, the title and ownership of the property had become, so to speak, split into two by the death of his wife — one undivided half remaining in the father,[the other vesting in the heirs of the wife, and that of their portion of this half they have not been divested. It is immaterial to both parties whether Oorbelle bought from the State or from any other person.j^There is nothing set up by either plaintiffs or defendant seeking to give to a title acquired from the State a character special or different from one from any other source. All parties rely upon the fact and validity of the title itself.

The issue is not as to the title conveyed to Corbelle, but as to the certain collateral facts which bear upon that title — first the date of the purchase, and next the date of the wife’s death, and the illegal divestiture of the plaintiffs’ rights.

The third section of Act No. 75 of 1880 makes it “ the duty of the Registrar of the Land Office to keep account of the sales of lands which have been donated to the State, in well-bound books, with the number of the certificate issued therefor, setting forth the section, parts of section, township and range, district and parish, to whom and when sold, and for what price * * * which books shall be preserved as official records.”

The law does not fix the form of the entries or of the record here required to be made, but simply declares the facts which must be placed of record. If the registrar places of record the entire patents which have issued, the record is just as legal as if mere memoranda or short notes had been taken and preserved of the data Which the law requires to have perpetuated. The record being official, the registrar was authorized to give a certified copy from it, which was legally admissible for the purpose it was introduced.

The objections raised by appellant to the testimony offered to prove up the act of sale sous seing privé from Mrs. Guillory to Zepherin LeBleu were correctly overruled. Mrs. Guillory is not a party to this suit, and the defendant does not hold under her. Plaintiffs do not sue either the defendant or Mrs. Guillory upon the instrument — quoad defendant the present ownership of the interest' which was inherited by Mrs. Guillory is only incidentally raised, and the parol testimony of a person who saw the parties and the attesting witnesses sign their names was properly received. Green-leaf, Yol. 1, par. 573b.

Defendant, after objecting to this testimony, went very far itself on cross-examination in the direction of proving up the fact which the document evidenced and the document itself.

Defendant claims that this paper does not purport to on its face convey any portion of the interest which Mrs. Guillory inherited from her deceased brother and sister. There was no necessity for her to state in the act the source or origin of her title; it was sufficient that she owned an interest in the property to the extent conveyed. How she owned it would be a matter of evidence should occasion require proof on that subject. That proof has been made in this case. The remarks.just made apply equally to plaintiff’s pleadings as to this interest. There was no necessity for plaintiff’to set out how the, interest conveyed to Zepherin LeBlue by Mrs. Guillory arose any more specifically than was done in the petition.

Defendant, in its objections to the admissibility of the certified copy mentioned of the patent, urged that the copy was inadmissible until the identity of the Amédé Oorbelle therein named with the Amédé Oorbelle under whom plaintiff’s claim was established. The objection went to the effect of the instrument, not to its admissibility. On the question itself of identity we have not the slightest doubt. The presumption arising from identity of name is fortified by all the facts in the case.

Defendant reserved a bill to the ruling of the District Court refusing to admit the testimony offered by it to prove the value of the improvements which it alleges it placed on the property while in exclusive. possession of the same and remitting the consideration of that question to future actions.

The effect of the judgment rendered by us is to recognize the defendant as a joint owner of the property with the plaintiffs. The defendant occupying that position sues the plaintiffs in reconvention directly for the improvements. The District Court held correctly that whatever claim defendant may have against plaintiffs as arising from the improvements should be urged in another form of action.

Defendant complains of the judgment as between itself and its warrantor to the extent that it did not in terms reserve it a right of direct personal action in warranty against the latter. We think that this reservation x’esulted as the necessax’y consequence of the pleadings and the rulings of the court in respect to the warrantor. The District Court (rightly or wrongly) upon the exception of the curator ad hoc dismissed as issues in the case and from the consideration of the court all moneyed demands against the warrantor on the ground that he was an absentee and could be brought into court only for the adjudication of the question of title. He was held in court exclusively for that purpose, and therefore all personal claims between defendant and the warrantor remained open for future action. There can be no objection, however, to making the judgment so declare in express terms. We are of opinion that the judgment appealed from was sustained by the law and the evidence.

Eor the reasons herein assigned it is hereby ordered, adjudged and decreed that the judgment appealed from be and the same is hereby affirmed with costs in both courts — the right of the defendant, the North American Land and Timber Company, to proceed by direct action in warranty against its vendor, Amédé Oorbelle, being hereby expressly reserved.


text:
    No. 11,570.
    Douglas H. Mays vs. L. L. Witkowski.
    1. In a petitory action., where plaintiff alleges the absolute nullity of certain tax sales under which it is assumed defendant will attempt to set up title, it is not necessary to make all the parties to those sales parties to the action. Belard & Johnson vs. Gebelin, 46 An. 326; Heirs of Ford vs. Mills & Phillips, 46 An. 331; Dauterive vs. Opera House Association, 46 An. 1317.
    2. A tax sale made under the provisions of Act No. 47 of 1873 not preceded by the seizure of the property then required through the recording of a description of the property with the amount of taxes due in the mortgage books of the parish where the land is situated is fatally defective. The prior seizure was by the law a condition precedent to a right or authority in the tax collector to soil.
    3. Though a defendant without title be authorized in a petitory action to set up an outstanding title in a third person against plaintiff’s demand, such title must be a valid legal subsisting one. He can not eke out the defective title of a third person by invoking prescription in its favor. That plea belongs to the party acquiring by that title and those holding under him, not by a person not in privity with him.
    4. A joint heir or joint proprietor can sue and maintain a petitory action against a mere possessor without title for the whole undivided succession or property.
    APPEAL from the Sixth District Court, Parish of West Carroll. Ellis, J.

      H. H. White and J. F. Ariail, Attorneys for Plaintiff and Appellant,
    cite Boone on Real Property, 5261; Stafford vs. Twitchell, 33 An. 523, 528; Rougolat vs. Quick, 34 An. 126; 14 An. 210; 30 An. 873, 1272; 37 An. 417; 45 An. 1109; 32 An. 236.
    if. P. Wells and Potts & Hudson Attorneys for Defendants and Appellee i

      Until the heirs are placed in possession by an order or judgment of court, the property left by the deceased belongs to his succession. O. 0., Arts. 872 and 873; 32 An. 1020. i
    The property is legally assessed to the “ estate of John H. Martin” until the heirs of Martin are formally placed in possession by an order of court. 33 An. 816; 28 An. 180; 43 An. 873.
    All deeds of sale made, or that may be made, by collectors of taxes* shall be received by courts in evidence as prima facie valid sales. Const, of 1879, Art. 210; Act 47 of 1873, Sec. 4; Act 107 of 1884; 38 An. 209; 35 An. 893, 1086; 31 An. 661; 30 An. 960; 29 An. 115; 37 An. 417; 40 An. 142.
    Actions to annul tax sales are prescribed in three years. Act 105 of 1874, Sec. 5; 39 An. 406, 1008; 45 An. 485; 43 An. 726.
    This prescription cures all nullities, absolute and relative. 39 An. 506, 1008; 43 An. 726.
    All informalities connected with or growing out of any public sale shall be prescribed against in five years. C. C., Art. 3543.
    This prescription applies to tax sales. 34 An. 208; 41 An. 816.
    He who acquires an immovable in good faith and by a just title, prescribes for it in ten years. O. O. 3478.
    Good faith is always presumed in matters of prescription and he who alleges bad faith in the possessor must prove it. C. O. 3481; 30 An. 937; 29 An. 43; 38 An. 212.
    A tax title or other deed apparently valid, with no defects stamped on the face of it, is a sufficient basis for the prescription of ten years. 38 An. 212; 37 An. 417; 41 An. 816.
    The purchaser in good faith from one who holds'under a tax deed will be protected by the prescription of ten years. 43” An. 918.
    The possessor may add to his own possession that of his author, to make up the ten years’ prescription. C. C. 2493.
   The opinion of the court was delivered by

Nicholls, O. J.

Plaintiff claims to be the owner of certain lands in the parish of West Oarroll described in his petition, which are declared to be all the lands formerly belonging to the succession of John H. Martin of said parish.” This suit is brought against L. L. Witkowski as being in possession of the same personally and through one Robert Holland as his lessee, the latter being made a party defendant. Ownership is claimed by plaintiff under an act of sale from Mrs. Lavilla B. Gillmore (wife of John Knox), a granddaughter of John H. Martin.

Coupled with the allegations in aid of plaintiff’s pretensions are others, declaring null and void the title which it was anticipated would be set up by the defendants, and also null and void all the other various titles preceding his own upon which Witkowski would depend.

The titles so referred to were as follows:

Defendant Witkowski by deed January 13, 1892, from James H. Sample.

Sample by deed of 19th February, 1890, from Herman Wilczinski.

Wilczinski by deeds of February 15 and 17, 1887, from Simon Witkowski.

Simon Witkowski by deed of May 3, 1884, from W. W. Bradley, State Tax Collector, which deed was based upon a tax sale under an assessment made against Con. E. Campbell as owner.

Con. E. Campbell by deed of March 26, 1879, from Annie Baldwin.

Annie Baldwin by deed from R. K. Anderson, State Tax Collector, of date September, 15, 1873, which deed was based upon a tax sale, under an assessment- made against the estate of John H. Martin.

Plaintiff assigns twelve different grounds as grounds of. nullity of the tax purchase made by Simon Witkowski on the 3d of May, 1884, and thirteen grounds of nullity of the tax purchase made by Annie Baldwin on September 15, 1873.

Holland answered, denying that he was on the property sued for and praying to be dismissed. Witkowski’s first appearance was through an exception to the action by reason of the want of proper parties; he urged that the suit was improperly brought, inasmuch as the plaintiff was seeking to annul several successive sales of the property sued for, without making any of the parties to the said sales parties to the action; that he was seeking to annul the tax sale made on the 15th of September, 1873, by Anderson, tax collector, to Annie Baldwin, upon the nullity of which the whole case rests, without making Annie Baldwin a party, or affording her any opportunity to defend said sale.

The exception having been overruled, the defendant answered, pleading:

1. A general denial.

2. -A special denial that Mrs. Lavilla Knox is the only surviving heir, of John H. Martin.

3. That the succession of John H. Martin was duly opened in Carroll parish in the year 1862 by the death of said Martin, and that on the 12th June, 1862, his widow, Mrs. Mary E. Martin, duly qualified-in Carroll parish as the executrix of the last will and testament, and therefore the property herein claimed was properly assessed to the estate of John H. Martin. That the property in dispute was legally and properly sold for taxes . on the 15th day of September, 1873, when Annie Baldwin purchased the same in good faith for five hundred and -eighteen- dollars and thirteen cents cash, and after the legal delays for the redemption had expired said Baldwin applied for and obtained from the Auditor of State a confirmatory deed in accordance with Sec. 6 of Act No. 47 of 1873, dated June 4, 1874*; that Simon Witkowski, on the 1st day of June, 1886, purchased the lands in dispute at tax sale; that said property was then sold as the property of C. E. Campbell, to whom said Baldwin had transferred same; that said property was sold for the taxes of 1885 and was bought in good fa th by Simon Witkowski for-the sum of ninety-one dollars -and twenty-five cents in cash; that all of said transfers were made in good faith and for a valuable, consideration, and that defendant and his author have held possession and paid taxes on. said land to this date, and that it is legally and justly his property; that he pleads the prescription of three years against the- action of the plaintiff to invalidate either of the above tax sales; also the prescription of five years against any and all informalities connected with or growing out of either of the above tax sales; also the prescription of ten years acquirendi causa; also the prescription of ten years against the right of Mrs. Knox or her vendee, Douglas H-Mays, to recover real estate derived by her by inheritance. That if evicted from the lands sued for, law, justice and equity require that plaintiff should pay respondent all the taxes paid upon said property by him and his author, amounting, in the aggregate to twenty-five hundred dollars. He prayed for the rejection of plaintiff’s demand, but in the event of his eviction for judgment in reconvention against plaintiff for the sum of twenty-five hundred dollars.

The case having been submitted to the court after evidence adduced and argument heard, judgment was rendered sustaining defendant’s pleas of prescription and rejecting and dismissing plaintiff’s demand at his costs and he has appealed.

The court’s action in overruling the exception filed was correct and is covered by the cases of Belard & Johnson vs. Gebelin, 46 An. 326; Heirs of Ford vs. Mills & Philips, 46 An. 331; Dauterive vs. Opera House Association, 48 An. 1317 The plaintiff in his pleadings declared that all the transfers of property by which the title of John H. Martin and of his succession and heirs was sought to be divested were absolute nullitie-’, not standing legally in the way of a direct petitory action requiring to be set aside. He had at his risk the right to go to trial on the issues made and tendered by him directly against the present defendant without the necessity of joining o.her persons.

On the Merits.

An examination of defendant’s pleadings shows that he does not, as plaintiff assumed he would, base title upon a tax sale in 1884, under an assessment made in the'name of Con.'E. Campbell, but upon a tax sale made in 1886, under an assessment made in that name. The record shows in 1884 the proceedings to which plaintiff alludes in his petition, but for some reason defendant has elected to ignore those proceedings, and to carry Campbell’s supposed ownership down to 1886, at which time he claims Campbell’s ownership was divested, and by Simon Witkowski acquiring the property at a tax sale.

The plaintiff asserts, and we think correctly, that there was no assessment of this property in 1885 as the property of Campbell. A description of the property was entered upon the assessor’s books in 1885, and in that description it is declared to be the property of Campbell, but no assessment was made upon this' entry; on the contrary, opposite the description is a statement that the entry was made through error, and reference is made to another page of the book, on which page the property is entered and assessed as the property of Simon Witkowski. The title under whieh the defendant declared being foundto have no existence, he is left under the pleadings as a possessor without title of the property since 1886 (Reynolds vs. Stille, 15 An. 544). The prescription of ten years set up by him obviously has no application under his own possession and that of Sample, Wilczinski and Simon Witkowski, and not holding under and through Campbell, he can not set up the latter’s possession and that of his authors and tack it to his own.

The original ownership of this property by John H. Martin is not questioned. Plaintiff and defendant both claim under him. We have seen that defendant himself has no title; we have, therefore, to inquire whether the plaintiff’s claim of ownership presented in a petitory action, be well founded or not. Defendant in possession contends that t e ownership of Martin was divested by a tax sale in 1874, at which sale one Annie Baldwin acquired the property, and he pleads in aid of that title the prescription of three and five years.

Though a defendant without title be entitled in a petitory action to set up against the plaintiff’s demand an outstanding title, the title-so setup must be a valid, legal, subsisting title. A possessor without title can not eke out a defective title in a third person by invoking prescription in its favor. That plea belongs to the party acquiring by the particular title and those holding under him, and not by one not in privity with him.

- The defendant has besides overlooked the fact that plaintiff is not seeking to invalidate a tax title. It is true that allusion is made by plaintiff to several tax sales, but this is not an action of nullity to set them aside; they are merely referred to as explanatory of the situation, and when referred to are stated to be absolute nullities. This action, as brought, is a petitory one, pure and simple. The tax proceedings and sales, so far as the plaintiff’s pleadings are concerned, may be really thrown out of view and are considered only as set up in defence.

Was the Martin title divested by the tax sale of 1873, at which Annie Baldwin became a purchaser? Plaintiff directs our attention to thirteen reasons going to show that that title was an absolute nullity. As any of the thirteen reasons would be sufficient, if well founded, to justify this action, it will be unnecessary to consider them all.

The tax sale of 1873 was made, the tax collector’s deed declares, under the provisions of Act No. 47 of 1873. The first section of that act declares that in case of refusal or neglect of any person against whom property is assessed to pay the taxes within ten days after the expiration of the public notice required by law, the tax collectormay give ten days’ written or printed notice to the owner or agent of the property assessed to pay said tax, after which delay, if not fully paid, the said tax collector may make a seizure of such property by recording a description of the same with the amount due in the mortgage book of the parish where it is situated, and on the fourth day of such recordation shall proceed to sell said property, without legal process, to pay said tax, and all lawful costs, after advertising three times within ten days in the official journal and in the country parishes where such publications can not be made by public notice for such ten days.

In the deed furnished by the tax collector to Baldwin the recitals are that after having made the necessary publications and advertisements, to-wit: in the Lake Providence Republican, a newspaper published in the parish of Carroll, said publications having been made on the 6th day of August, 1873, at the door of the court house in the parish of Carroll, on Levee street, between First and Second streets, town of Providence, parish of Carroll aforesaid, the following described property, to-wit: “N. 1-2 of S. W. 1-4 of See. 3; the S. 1-2 of N. W. 1-4, N. W. 1-4 of N. E. 1-4 of Sec. 10; E. 1-2 N. W. 1-4 of Sec. 22; all of Secs. 15 and 16; all of Secs. 11, 14, 23, 26 and 27, lying west of Bayou Macon, all in T. 22, R. 11 E., containing four thousand three hundred and thirty-nine and 14-100 acres, more or less, the same having been seized for the payment of taxes due by the estate of John H. Martin, as owner thereof according to the tableau and assessment rolls for the years 1867, 1869 and 1871, at which sale Annie Baldwin, residing at Cincinnati, being the highest and last bidder, the said property was adjudicated to the said Annie Baldwin for the full price and sum of five hundred and eighteen and 13-100 dollars, which I acknowledged to have been paid.”

This deed was executed on the 15th September, 1873.

The act No. 47 of 1873 took as a starting point of official action against delinquent tax-payers a “public notice required by law.” Within ten days from the giving of this notice tax collectors were directed to give notice to the owner or agent of the property to pay the tax; the notice to be given being authorized to be either written or printed. Ten days from the giving of this notice the tax collector was directed to make a“seizure” of the property, and this “seizure” was operated under the law by recording a description of the property with the amount due in the mortgage book of the parish where the land was situated. This “seizure” or “recording” under the law became the “starting point” for official action looking to a sale, for it was only after lour days had elapsed after this recording that the sheriff had authority to advertise. The statute fixed the time and manner of advertisement.

A comparison of the recitals of the-sheriff’s act with the requirements of this statute shows defects fatal to the deed. In the first place there is nothing to indicate that the original “public notice required by law” was ever made, nor that any notice, either written or printed, was ever given to the owner or agent, and in the next place there is nothing to show that any seizure of the property through the recording of its description with the amount of taxes due thereon was ever made. This “seizure,” through recording, as the law then stood, was a sacramental formality. It was not only the initial point for the running of certain delays, but it was- the very basis or warrant for subsequent action by the tax collector. It is claimed that the deed de'clares that the property had been “seized”' for the pay-' ment of the taxes; but this conclusion of the collector that a seizure had been made did not take the place of a re ital of the fact from which the seizure legally resulted. Again the tax collector, in reference to publications made by him, stated he had made the- “necessary” publications, placing a second time-his conclusions in the-deed instead of the facts themselves on which conclusions could be reached by those authorized to reach them. The collector was not authorized to do so. The statement made by him of the advertisements made was an imperfect one, and by no means showed advertisements during the time and manner exacted by the statute.

We are of the opinion that the sheriff’s deed was an absolute nullity and conveyed no title; certainly none- which the defendant could invoke.

Prom the record it would appear that John H. Martin left three heirs, Mrs. Gillmore (of whom the plaintiff is the vendee) -and two sons. One of these sons is shown to be still living and in this State, but nothing is shown as to the other. We must presume that he is still living. Under the circumstances what judgment should we render in the case? We are nob authorized to adjudge the plaintiff to be the owner of more than an undivided one-third interest in the property, but what action shall be taken- in regard to plaintiff’s prayer for possession, which, as it stands, is for the possession of the whole property? Should we restrict the decree for the possession to the possession of an undivided one-third of the property, or should we decree as against the defendant, who has no title, that possession of the whole property be given to the plaintiff?

In Compton vs. Matthews, 3 La. 128, this court held “that a joint proprietor could sue and maintain a petitory action against a mere possessor, without title, for the whole undivided succession or property.” The principle there enunciated has been several times reaffirmed and controls this ease.

The defendant not holding under either Baldwin or Campbell, his claim of subrogation from them is without basis. The liability of the plaintiff for reimbursement of taxes which may have been paid on this property can not be tested in the present suit. Any claim which defendant may have against the plaintiff for reimbursement of taxes paid on the property should be reserved. Font vs. McConnell, 46 An. 215.

For the reasons herein assigned it is ordered, adjudged and decreed that the judgment appealed from be and the same is hereby annulled, avoided and reversed, and it is now ordered, adjudged and decreed that ihe plaintiff he recognized as, and declared the owner of one undivided third of the property claimed by him, and that he be placed in possession of the whole property as prayed for in his petition.

It is further ordered and decreed that defendant be reserved the right to claim from the plaintiff the repayment of taxes which have been paid on the property in litigation herein, for which the plaintiff is legally liable, and that the defendant pay the costs in both courts.


author: Watkins, J.

text:
    No. 11,656.
    A. G. Frere, Sheriff, vs. The Bank of Morgan City.
    As this record presenta a simple question of fact, and the amount involved is below the lower limit of this court’s jurisdiction, the appeal must be dismissed.
    APPEAL from the Seventeenth District Court, Parish of St. Mary. Allen, J.

      J. Sully Martel for Plaintiff, Appellee.

      Philip H. Meniz for Defendant, Appellant.
   The opinion of the court was delivered by

Watkins, J.

This is a proceeding on the part of the tax collector, by rule on the defendant, to show cause why it should not pay a license of one hundred and fifty dollars for pursuing the business of private banking in conformity to the provisions of Act 150 of 1890.

The answer of the defendant is that it is a duly organized corporation under the laws of the State, for the sole purpose of banking, and is-not liable for the license demanded, nor any other license for carrying on the business of banking. That its capital is twenty-five thousand dollars, and that it has no surplus. That it is not a private hank, but a public bank. That there is no law requiring a license from a bank with that capital and no surplus; and that it was not the ¡intention of the General Assembly of this State that such a bank should pay a license.

We extract from the brief of the defendant and appellant’s counsel the following, viz.:

“ This action is based on a rule to show cause, taken by the attorney to aid the collector of licenses, and directed against the defendant corporation as ‘ private bankers,’ and the demand is for a license of one hundred and fifty dollars for carrying on such business.
“The defendant’s answer is that it is not liable for the license asked (for nor any other license; that its capital is twenty-five thousand dollars, and that it has no.surplus; that it is not a private bank, but a public bank; that there is no law exacting such a license from such a bank with that capital and no surplus.”

From the petition, answer and brief it is easily and plainly discoverable that the case presents only a question of fact for determination, and no question of the .legality or constitutionality of the license that is sought to be recovered from the defendant.

As plainly stated in defendant’s brief, his contention is that “ it is not a private bank, but a public bank.”

It is perfectly clear that this court has no jurisdiction of this cause —the amount in controversy being less than two thousand dollars in amount.

The appeal must be dismissed ex proprio motu.

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