text:
    No. 11,785.
    Henry S. Palfrey et als. vs. J. W. and W. P. Foster.
    A party selling a tract of land and reserving the right to construct on his own land a connection or switch railroad with a road to be constructed over the land sold, a subsequent vendee of the party making the reservation can exercise no greater right than that reserved. Where the immediate vendee of the party constructs the road and builds it, there being nothing said as to its location, or the kind and character of the road, or when this is doubtful, the location of the road by said vendee, and the kind of road he builds, will conclude a purchaser from him, and he can demand no greater rights than those exercised by the purchaser under the original reservation.
    A PPEAL from the Seventeenth Judicial District Court for the ■C Parish of St. Mary. Allen, J.

      L. F. Suthon for Plaintiffs, Appellees, cites: C. C., Arts. 754, 755, 756; C. C., Art. 771; C. C., Arts. 798, 800, 789, 796, 653, 654; 5 An. 577; 37 An. 242; 39 An. 210.

      D. Caffery & Son for Defendants, Appellants, cite: C. C., Arts. 1956, 743, 753, 1913, 1914.
    Submitted on briefs, April 26, 1895.
    Opinion handed down, May 6, 1895.
    Rehearing refused, May 20, 1895.
   The opinion of the court was delivered by

McEnery, J.

On the 19th day of May, 1886, T. J. Foster sold certain immovable property in St. Mary parish to the Burdon Central Sugar Refinery Company. In the same act of sale he granted to the company “the right of way of the customary and necessary width, over, through and across the said plantation lands, lying on the west side of the public road, for the purpose of laying, making, and using, with sufficient and proper grade and ditches and necessary cattle gaps, a switch road connecting said lot herein conveyed to said corporation with tbe main line of Morgan’s Louisiana & Texas Railroad on said plantation land.” He reserved to himself “the right to make or cause to be made and built on his own lands such switch road connection with the said line of switch as hereinbefore set forth for any purpose and use as he may deem advisable, provided such connection shall in no manner obstruct or interfere, at any time, with the use by said corporation of the said switch connecting said lots with the said Morgan’s Louisiana & Texas Railroad for the business purposes of said corporation, which said connection or switch road, built and made by the said Foster, or by him caused to be built and made, is to be, in so far as the same shall be located on his own lands, under his sole control, nor shall the said switch road, the right of way for which is herein granted to said corporation, for any purpose than for the transaction of a proper business, nor for the transportation of any materials or articles for any other purpose or corporation whatever.”

On the 7th day of September, 1888, T. J. Foster sold to his sons, the defendants herein, a sugar plantation in the parish of St. Mary, known as the Shady Retreat plantation.

On the 14th day of April, 1891, the defendants sold to Reed McLane a part of the Shady Retreat plantation, acquired from their father, T. J. Foster. In the act of sale it recited “ the said vendors moreover transfering and conveying to the said McLane the right and privilege they now hold of connecting with and using the switch railroad now on the plantation lands of said vendors, belonging to the said sugar refinery, but guaranteeing no further or greater rights and privileges than as now by them held and as specified in the contract of May 19, 1886, made by Thomas J. Poster and L. Murray Perris, representing the said Burdon refinery. ’ ’

Reed McLane constructed a tramway, or narrow gauge road, to the switch of the Burdon refinery, which is a broad gauge track. McLane subsequently made a cession of his property to his creditors, and at the syndic’s sale the plaintiffs purchased the property, with its incidental rights of way, privileges, etc. The servitude granted by his vendors, of course, passed with the title.

The plaintiffs brought this suit to have “recognized to its fullest extent the servitude claimed by petitioners, decreeing them the right to enter upon the lands of defendants to construct a switch road from their shingle mill, and connect with the switch road of the Burdon sugar refinery, over a practicable route, and with the least damage possible to the debtor’s estate.”

The object of the suit is to change the location of the switch road made by McLane, as it is impractical to construct a broad gauge road on that route or line, the plaintiffs contending that a broad gauge road was contemplated by the parties granting the right of way.

There was judgment for plaintiffs, recognizing their right of way over defendants’ land, on which to build a broad gange switch, but rejecting their demand for damages for withholding the right of way.

The defendants filed an exception for the dismissal of the suit on the ground of a failure to put them in default, a prerequisite to the execution of the contract ab to the right of way.

The suit is for a right of way, a servitude which had been granted and enjoyed, but not to the extent as claimed by plaintiffs that the grant warranted. The formal putting in default was not essential. The suit was a sufficient demand. Nor is there any demand for the violation of the contract, because of its inexecution.

It had been executed, but not to the extent claimed by plaintiffs.

The plaintiffs are suing for what they claim they purchased at a forced sale and which they allege defendants withheld from them.

There is undoubtedly some ambiguity in the contract as to the kind of road that McLane was permitted to build over the property of defendants.

As the contract is to be interpreted by the grant in the Act of May 19, 1886, by referring to the act we find that the words “connection” and “ switch road ” are used as synonimous terms. The act further says, “ which said connection or switch road built and used by the said Foster, or by him caused to be built and made, is to be in so far as the same shall be located on his own lands under his sole control.”

There was no obligation imposed upon Foster in favor of anybody to build a broad-gauge road. The reservation was made for his own benefit, and it was within his discretion to build any kind of road, and to locate the same on his own land, on any line he siw fit to place it.

McLane obtained from his vendors no greater right than Foster had reserved to himself. There was no designated route for the road. The principal contention here is to change the location of the road as fixed by McLane.

McLane located the present narrow gauge with the consent of de - fendants. One of the defendants says that McLane asked his permission to cut some oats from defendant’s land, in order to run the line of road. He offered to compensate defendant for the destruction of the oats, who declined it, because the defendant had agreed to give him the right of way. The right of way having been granted, without specifying the direction or route of the road, the selection of it by McLane, with defendant’s consent, is conclusive as to its location.

It is therefore ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed, and it is now ordered that plaintiffs’ demand be dismissed at their costs in both courts. It is further ordered that the location of the narrow-gauge road, as fixed by McLane, be maintained in favor of plaintiffs, with the right to construct thereon all needful and necessary works for the use and enjoyment thereof.


source: Caselaw Access Project

author: Nicholls, O. J.

license: Public Domain

text:
    No. 11,795.
    Calvin W. Marionneaux et als. vs. Valliere P. Dupuy, Testamentary Executor et als.
    Natural children who claiming to have been legitimated by their father, and thereby made his forced heirs, brought suit to have his will set aside so far as it affected their legitime, are not estopped from bringing the action by reason of their having accepted delivery from the testamentary executor of property specially bequeathed, them, and having granted the executor a discharge from all liability to them on account of that particular property in an act wherein the existence of the will and its probate is referred to, when they were not parties to. the probate proceedings, and knew nothing of the other provisions • of the will. There is no inconsistency in a father in the exercise of his power of disposition over the disposal portion of his estate making special legacies and leaving the legitime intact. The heirs would have the right to assume that such was. the ease.
    Where a natural father in a notarial act in which he acknowledged certain persons as his children, declared that in so doing, it was his intention to “ legitimate ” them, proceeds at once before the same notary and the same witnesses to make his will, in which he makes special legacies to these children, referring to them as his “ acknowledged children,” and after having done so, divides the residue of his estate into twelve parts and bequeaths each of the parts to certain nephews andneices, who are mentioned as his heirs; the two acts may be read together as a continuing single transaction, with a view of ascertaining in what sense the word “legitime” was used, it being susceptible of two meanings.
    Behind the question of legitimation velnon, lies the question whether by legitimation by notarial act, natural children become “ forced heirs ” of the father.

    A PPEAL from the Fourteenth Judicial District Court for the -A Parish of Iberville. Talbot, J.

      Guy Hebert and George B. N. Wailes for Plaintiffs, Appellants.

      Samuel Matthews and Sims & Gondran for Defendants, Appellees.
    Submitted on Briefs, May 10, 1895.
    Opinion handed down, May 20, 1895.

       The court does not decide this point. As the cause is remanded the attention of the parties is called to this question. — Reporter.

   The opinion of the court was delivered by

Nicholls, O. J.

The present suit was instituted by Henry Dona, Mary, Lena, Louis and Clementine Marionneaux. Plaintiffs allege that they are the children and heirs of Sil vert Marionneaux; that on the 30th of August, 1893, their father legitimated them in the manner required by law by an an act passed before Louis Lozano, notary public. That subsequently, on the same day, he executed his last will and testament by public act, in the nuncupative form, before the said notary; that by said will the testator bequeathed to each of the petitioners one town lot each in the town of PJaquemine; said lots being of no very great value, the whole amounting, as shown by the inventory, to ten thousand, nine hundred dollars, whereas the entire active mass of the succession was appraised at the sum of forty - five thousand one hundred and nine dollars and ninet -nine cents.

That by said will the the testator bequeathed to his nephews and neices, and the children of his nephews and neices, all the rest and residue of his property, with the exception of a legacy in favor of Emma Madison of three thousand dollars, and that said dispositions are largely in excess of the disposable portion which the testator was authorized by law to will to other persons than to petitioners, his legitimated children and force heirs. That the said testator could only dispose to the prejudice of petitioners and their co-heirs and other legitimated children, not parties to this suit, of one-third of all the property of which he died possessed. That he appointed Valiere Dupuy his testamentary executor, at whose request the will had been probated; that they were not parties to the proceedings by which said will was admitted to probate, and were not cited nor notified to attend the same, as the law requires, to be present in order that they might object if they saw fit to said proceedings, and listen to the decree of court by which said will was ordered to be probated, registered aud executed according to law and its tenor, and that all of said proceedings, in so far as they are concerned, are null and void, and can have no legal effect upon their rights and interests. That subsequently they were requested by the executor and the clerk of court ex offieio notary public to appear in the office of the latter and to sign papers prepared without consultation with petitioners, and without any previous knowledge on their part of the contents of said papers, and without having given them an opportunity to consult counsel or gather information as to the purport and scope and object of the same, and they were told then and there to sign the same; that being ignorant of the law and the facts by which their rights were governed, and especially ignorant of their legitimation by their father, they signed said papers. That the notary and the executor were both aware of the fact that petitioners had been legitimated by their ancestor, as above set forth, but concealed purposely all knowledge of said legitimation from petitioners and insisted upon their signing the papers immediately upon their being produced and read to them. That the hasty manner in which they were called upon to sign, without previous knowledge of the contents of said papers, without opportunity given to them to consult counsel, and the failure to cite petitions to be present at the probate of said will, and the other acts mentioned, operated as a fraud upon their rights, and that by reason of said fraud and of their ignorance in regard to law and facts, they were not bound by their signatures, and the acts which they signed, being the acts by which they accepted delivery from the executor of the lots respectively bequeathed to them in said last will, are absolutely null and void. That if not null and void they can have no other effect than to re - duce the portion of their legitime, so that together with said legacies it will amount to the sum of which they cannot be deprived, and for which they are forced heirs. They prayed for citation upon the various parties in interest; that after due proceedings the various acts by which they are made to appear as accepting the legacies of the town lots, be declared absolutely null and void in so far as they affect their rights; that the probate of the will be set aside, and that the same be ordered to be executed according to the decree to be rendered in the present case and according to law; that judgment be rendered in their favor, decreeing them to be owners of the one undivided two-thirds of all the property belonging to the succession of Silvert Marionneaux, and that all the legacies made to other parties in the will be reduced to the disposable portion, and that pe - titioners be placed in possession of said property upon paying the debts against it.

The executor excepted that on the face of the petition and the documents annexed thereto, plaintiffs showed no right of action in law to maintain the prayer in their petition, which is prohibited by the law of Louisiana. The court overruled this exception. The defendants then excepted to plaintiffs’ demand on the ground that on the face of the petition and the documents thereto annexed, and made part thereof, they had each and all of them, in public and authentic form, affirmed and voluntarily executed the will of Francis Silvert Marionneaux, and all donations made therein to them, after his decease, ar>d had thereby renounced all right to oppose either defects of form or any other exception to said will. They prayed that the demand of plaintiffs be rejected, and their suit dismissed. The court sustained this exception, rejected plaintiffs’ demand, and dismissed their suit, and they appealed.

The exception was tried on the face of the papers. In our opinion it should have been overruled. Plaintiffs’ allegations as to fraud and error could not be ignored by the court; they had to be taken as true for the purposes of the exception, and if they were true there was clearly no estoppel in the case. Independently of plaintiffs’ pleadings however, we think the exception of estoppel was not well founded. Assuming, for the time being, plaintiffs’ position that they are the legitimate children and forced heirs of Silvert Marionneaux is well founded (and we are bound to do so as matters stand), we would see nothing in the simple fact that they had accepted delivery of the particular objects specially bequeathed to them from the executor, and given him an acquittance for all liability to themselves on account of that precise property, which would cut them off from making available their rights as forced heirs which they hold from the law. It is not pretended that these plaintiffs had been made parties to the proceedings in the matter of the probate of the will — that they had any knowledge of its provisions or their rights in the premises. The executor has never filed an account and he has never been discharged. It is true that when the plaintiffs accepted delivery of the particular property bequeathed to them, they were informed that Silvert Marionneaux had made a will —that in that will this particular property had been left them as a legacy, and that the will had been ordered to be probated according to its tenor; but the information thus conveyed to them would, at the furthest, have only the effect of committing them to the validity of the will as to form and to an acceptance of the particular property which had been left them, with such incidental obligations, perhaps, in regard to it, as might spring from that acceptance.

There is no inconsistency whatever in a father in the exercise of his power over the disposable portion of his estate, leaving special articles to particular forced heirs, and leaving unaffected and un-trammelled the legitime belonging to the heirs. A forced heir re-eeiving delivery of an object, specially bequeathed, would have the right to assume that such in fact was the case. The attention of the plaintiffs was nowhere called to the fact that Marionneaux’ nephews and nieces had been by him instituted his heirs in the same testament in which they had been given special legacies, and we see no possible ground upon which those parties could predicate a claim of estoppel. Heirs of Burney vs. Ludeling et als., 47 An. 88. Matters stand just as they did when Marionneaux died, except as to the particular objects specially bequeathed; the delivery.of these objects did not work injury to anyone, or induce anyone to a change of his position.

We next come to the exception filed by defendants, which was overruled by the court, “ that on the face of plaintiff’s petition, and the documents annexed thereto, they showed no right of action in law to maintain the prayer of their petition, which is prohibited by the law of Louisiana.”

Defendants’ proposition is that although in the act recognizing the plaintiffs as his natural children, Marionneaux is made to declare that in so doing it was his intention to “ legitimate ” them, yet it is obvious from the will made by him at the same time, before the same notary and same witnesses, that that word was not used nor intended to be used by him as giving to them the status of legitimate children — that the word is susceptible of another meaning which it is the right and duty of this court to adopt in view of the terms of the will and the evident intention of the testator as expressed therein, which is that it was his intention to vest in them thereby the legal status necessary to receive the special bequests therein about to be given to them by him; that the word “legalize,” rather than “legitimate,” was intended; that the two instruments are to be read together as a continuous whole, and when so read there can be no doubt as to the sense which the word “ legitimate ” was used.

On the other hand, it is claimed that the word must be taken as giving the children all the benefits resulting from being legitimate children; that the effect followed as the iustautaeous legal effect of Marionneaux’ declaration, and that he could not by any dispositions of a subsequent will, or by any recitals therein, undo what was already an accomplished fact.

The will in this case, upon its face, would negative the claim advanced by the plaintiffs. It was the clearly expressed intention of the testator to dispose thereby of his entire estate, and to direct that these plaintiffs should take nothing from it beyond the specific legacies made to them. He distinctly wills that after these special legacies, and his debts should have been paid, that the residue of his estate should be divided into twelve equal parts and pass to his nephews and nieces as indicated in the testament. He refers to these relatives of his as his heirs, while in each of the successive legacies made to the children, he refers as each is made to the particular legatee as being simply “ his acknowledged child.” There is no questioning the correctness of the position taken that, after a father has legitimated his child, he can nob by subsequent will, through the dipositions or recitals therein, undo what he had already done, but the question in this case is precisely whether or not he had legitimated them. The premise being granted that he had done so, the legal conclusion would follow which plaintiffs contend for. If the two acts had been separated by any length of time, plaintiffs’ argument would be very strong, but the two acts are so closely connected in this case as really to form one and the same transaction, and are to be read together. In matters of testamentary dispositions the will of the testator is to be carried out if possible. Where a term which the testator has used is susceptible of two meanings, and it is shown by the testator’s contemporaneous acts and conduct that the meaning which would have been accepted, in the absence of such acts and declarations, was not the one intended by him, we think we are authorized to go into the inquiry as to what the testator’s real purpose was. It is quite probable in this case that neither the notary nor Marionneaux understood the significance of the word “legitimate.” Marionneaux himself clearly did not, so far as this is shown by the instrument on file. We think the whole question as to this point should be left to be disposed of as one of the issues on the merits. As our conclusion necessitates a reversal and remanding of the case, we think it not amiss to call the attention of both parties to the fact that back of the question of “legitimation” of the children lies another, that is what effect the legitimation of natural children by notarial act may or may not have in vesting in them the status of “forced heirs.” C. C., 200, 214.

For the reaaons herein assigned, it is hereby ordered, adjudged and decreed that the judgment of the District Court, sustaining defend ant’s second exception and rejecting plaintiffs’ demand, and dismissing their suit, be and the same is hereby annulled, avoided and reversed.

It is further ordered that this cause be remanded to the lower court for further proceedings according to law.


author: Watkins, J.

text:
    No. 11,838.
    State ex rel. Isaac Goldberg vs. D. A. S. Harmon, Constable of the Third Ward of the Parish of Calcasieu.
    Application for relief by habeas corpus must be refused, in case the defect alleged to exist in the warrant for relator’s arrest, does not appear to be radical or jurisdictional.
    y^PPLIOATION for a Writ of Habeas Corpus.

      James Wilkinson for Petitioner.

      Clegg & Thorpe for Respondent.
    Argued and submitted, May 13, 1895.
    Opinion handed down, May 13, 1895.
   The opinion of the court was delivered by

Watkins, J.

Alleging that he is unlawfully restrained of his liberty and now held in custody by the respondent, under and by virtue of a warrant which was issued by C. B. Beland, justice of the peace for the third ward of the parish of Calcasieu, and bearing date May 4, 1895, and which is absolutely null and void, because it “ discloses no crime known to the laws of this State,” the relator prays that he be set at liberty.

The respondent returns that he holds the relator in his custody in obedience to a valid warrant issued by the justice of the peace above named, and therewith he has brought up, in the original, the affidavit on which the warrant is predicated, and made same a part of his return.

The illegality of the warrant on which the counsel for relator relies, as sustaining Ms claim to relief, is that that the crime charged is that “Isaac Goldberg did, on or about the 5th day of March, 1895, obtain the sum of fifty dollars from M. Stanley Hogan under false pretences.”

While his contentions is that the law denounces as a crime ‘1 obtaining property by false pretences, with intent to defraud.”

But the statute on the subject is couched in language somewhat different from that of the warrant, as well as that of the relator’s petition, and it runs thus, viz.:

“ Whoever, by any false pretense, shall obtain from any person money or any property, with intent to defraud him of the same, shall, on convicton,” etc. R. S., Sec. 818.

The distinction taken by counsel for the relator does not appear to us to be necessarily fatal in such a preliminary proceeding as this, even if we are to consider no other fact than such as is exhibited on the face of the warrant. But, an examination of the affidavit on which the warrant is predicated, makes it clear that a crime was charged which gave to the justice of the peace, issuing the writ, full and complete jurisdiction.

Under our statute the crime denounced is a statutory offence, and it is the settled jurisprudence of this court that even in the indictments against offenders thereunder only words of equivalent import need be used; and a preliminary warrant need not be more circumstantial.

The alleged defect in the warrant not being radical or jurisdictional, the application must be refused.

It is therefore ordered and decreed that the relief prayed for be refused at relator’s cost.


author: Miller. J.

text:
    No. 11,821.
    State ex rel. David Meaux vs. The Judges of the Third Circuit Court of Appeals.
    A reasonable doubt as to the jurisdiction of the appellate court should be resolved in favor of an appeal; so when the petition avers a money demand within the appellate jurisdiction, the appeal should be maintained, unless the demand be manifestly fictitious. 16 La. 182; 3 Kob. 143; 4 An. 213; 6 Rob. 151.
    ^PPLCATION for a Writ of Mandamus.

      Louis L. Bourges for Relator.
    Respondents in P. P.

    Submitted on Briefs, May 13, 1895.
    Opinion handed down, May 20, 1895.
   The opinion of the court was' delivered by

Miller. J.

This is an application for a mandamus to compel the judges of the Circuit Court of Appeals of the Third Circuit Court to take cognizance of relator’s appeal from the judgment against him as plaintiff in his suit against J. O. Lege in the District Court.

The Circuit Court declined jurisdiction, on the ground the suit involved only the question of boundary of a narrow strip of land, the value of which is not shown. The relator claims his suit was petitory in its character. On looking at the petition setting forth the cause of action, we find the relator claims rents and other items of alleged' damage. It may well be that these items are inflated, but at the same time a very slight addition to the item claimed for rent (fifty dollars) would bring the amount in contestation, irrespective of the land, up to the jurisdictional test of the Circuit Court. It is not infrequent to permit affidavits to supply averments of values of lands or of real rights in contestation. On a question of the right of appeal, we think the doubt should be resolved in favor of the appeal, especially as on the development of the testimony the court can dismiss the appeal if it is manifest there is no jurisdiction.

It is therefore ordered that the writ of mandamus issue, commanding the judges of the Circuit Court of Appeals for the Third Circuit to take cognizance of the appeal of relator, as prayed for in his petition.


text:
    No. 11,738.
    John Barkley vs. Succession of S. B. Steers et al.
    Though the subsequent acquisition by a vendor of property which he had sold before he was the owner thereof inures to the benefit of his vendee, the latter’s rights are held subordinated to the vendor’s privilege and special mortgage, with which the property passed unencumbered into the ownership of their vendor, and these rights are cut off by a judicial adjudication made to the mortgage creditor in the settlement of his succession.

      A person can not invoke a breach of warranty between his own vendor and the person who sold to him, unless there be privity between himself and that vendor in respect to the subject matter of the call in warranty. In the absence of privity his own contract measures his rights of warranty.
    APPEAL from the Civil District Court for the Parish of Orleans. ThéarcL, J.

    Plaintiff by notarial act passed before Woulfe, notary public, on the 18th of July, 1890, acquired from the succession of Thomson the ownership of a lot of ground with all the buildings and improvements thereon, situated in the First District of New Orleans, in the square bounded by St. Joseph, Peters (late New Levee), Julia and Commerce streets, and among other lots one designated as lot No. Ill on said square No. 54, which lot measured seventeen feet three inches and four lines on Peters street, by one hundred feet in depth, with width on the rear line of seventeen feet six inches and five lines. Adjoining said lot No. Ill is property belonging to the successions of Schuyler B. Steers and Frederick Saville. He claims that the successions of Steers and Saville have encroached on said lot No. Ill and have placed thereon a brick wall covering a triangular portion of said lot No. Ill to the extent of eight feet three inches front on Peters street, running back the full depth of the said lot one hundred feet, with a width in the rear of one foot three inches. That he is the absolute owner of said triangular portion of ground, part of said lot No. 111. That the strip of land is fully worth one thousand dollars. He prayed that he be decreed owner of said property; that he be placed in possession thereof, and that defendents be condemned to pay him one hundred dollars per annum for the use thereof from the 16th of July, 1890, until final delivery.
    Defendants aver that the property belongs to themselves; that the brick wall alluded to in plaintiff’s pet tion is a part of the building formerly known as the Crescent City Refinery Company, which was erected about the year 1861 by the late Adam Thomson, the same person from whose succession the plaintiff claims title, and said Thomson acquired the said property by purchase from R. Prague and others by act passed before Oastell, notary public, on the 18th of November, 1881; that on the 20th of December, 1882, the said Thomson entered into a written agreement by which he bound himself to sell to the Crescent City Sugar Refinery Company all the property known as the Crescent City Sugar Refinery, situated on Peters and Common streets, together with and including all the buildings and improvements thereon, etc., which agreement was annexed to and made part of an act of sale before Andrew Hero, a notary public, is dated 30th January, 1883, by which said Adam Thomson sold to said Orescent Oity Sugar Refinery Company the said property in which is included the property in dispute in this case and said Adam Thomson bound himself in said act, and is and was bound in law, to warrant and defend the title to said property thus sold by him. That on the 12th of June, 1886, Harry T. Howard acquired said property by deed from the United States Marshal of that date, and acquired all the rights of warranty possessed by the said Orescent Oity Sugar Refinery Company, and defendants acquired said property by purchase from said Howard with all the rights of warranty, and therefore the said Adam Thomson is the warrantor of defendants. That shortly after the completion of the sale by Adam Thomson to the Orescent Oity Sugar Refinery Company, in which company Thomson was a stockholder, there was a claim made somewhat similar to the one made here by the then owner of plaintiff’s property, and in order to settle all doubt, Thomson purchased the said lot now pretended to be owned by plaintiff from George A. Hero, by act before Andrew Hero, Jr., notary public, on the 27th October, 1883, that plaintiff was cognizant of all these facts at the time and was fully aware of them when he made his purchase as alleged in his petition. Respondents do not admit that George A. Hero had any right, title or interest in the property, and specially deny the same, but should it be held that he did transfer the property in dispute to said Thomson by the said sale, then said Thomson acquired for the use and benefit of the Orescent Oity Sugar Refinery Company in satisfaction of his agreement and contract of the 29th of January, 1882, and of the act of sale before Hero, notary, of January 30, 1883. They aver that if they are obliged to remove their wall and surrender the piece of property in question great damage will ensue to them to the amount of three thousand dollars, for which amount the succession of Thomson will be liable to them in warranty.
    They called the succession of Thomson in warranty, and asked that plaintiff’s demand be rejected.

      The succession of Thomson, through the executrix, averred that Adam Thomson, by act of 30th January, 1883, before Andrew Hero, in fulfilment and execution of previous written agreement of December 29, 1882, sold to the Orescent Oity Sugar Refinery Company the property in said act described, but she specially denied that the succession owes any warranty to the defendants, as claimed by them in reference to the narrow strip or triangle referred to. That Thomson never sold to the said company the property embracing the said narrow strip, referred to in this case as encroached upon, because Thomson subsequently acquired it from G. A. Hero, and sold to the plaintiff by act before Woulfe, notary; that said plaintiff, Barkley, had full knowledge at the time of purchasing, and previously thereto, of the encroachment by the neighboring proprietor; that the strip was not owned by Thomson at the time of the sale to the Orescent Oity Sugar Refinery Company, as was well known to both plaintiff and defendants at the time of their respective purchases.
    Judgment was rendered recognizing plaintiff as the owner of the property sued for, and decreeing that he be placed in possession thereof, but dismissing his demand for revenues; and also one in favor of the succession of Thomson on the call in warranty and against defendants, dismissing their call in warranty with costs.
    Defendants appealed.

      William, 8. Benedict and Hugh C. Cage for Plaintiff, Appellee.

      Saunders, Miller, Smith & Hirsh and Guy M. Hornor for Defendants, Appellants.

      Jos. C. Gilmore for Succession of Thomson, called in warranty, Appellee.
    Argued and submitted, April 26, 1895.
    Opinion handed down, May 20, 1895.
   The opinion of the court was delivered by

Nicholls, O. J.

It seems to be conceded that when Adam Thomson sold to the Orescent Oity Sugar Refinery Company, on the 30th day of January, 1883, the property described in the act of sale of that day, before Andrew Hero, notary public, that the ownership of the few feet of land, which are in contestation in this suit was not in the vendor, Adam Thomson, but in the widow and heirs of Prague.

It is contended, however, that Thomson intended to sell and the company intended to buy this small strip, and that Thomson subsequently, on the 27th day of October, 1883, bought from George A. Hero (its then owner") lot No. Ill, of which it formed a part, in order by so doing, to comply with his legal obligations as vendor, and to complete and perfect the title of the refining company. That this result followed ipso facto by effect of law without the necessity of a direct act of transfer to the company, under a line of decisions-holding that, though the sale of another’s property be null, yet the vendor’s subsequent acquisition vests the title at once in the vendee. Evans vs. Gray, 12 Martin, 649; Woods vs. Kimball, 5 N. S. 246; Fenn vs. Rils, 9 La. 100; Louisa A. Lee vs. Ferguson, 5 An. 532; Succession of Dupuy, 33 An. 277. That there was no necessity that there should be evidence on the books of registry of this change of ownership so operated from Thomson to the company, because the plaintiff who acquired lot- No. Ill at a sale made in th s succession of Adam Thomson was aware at the time of and prior to his purchase of the rights of the company.

We do not think it necessary to determine whether plaintiff was possessed of such information on the subject as defendant asserts he had, for the reason that lot No. Ill, as we understand the record, went into the ownership of Adam Thomson, struck by the vendor’s privilege, which resulted from his purchase of the same in favor of his vendor, and by the special mortgage which he granted to secure the credit portion of the price. Assuming that Thomson’s purchase enured to the benefit of the refinery company, it could only do so in subordination to the real rights of third persons existing on the property at the moment of its acquisition. The plaintiff, at the time of the succession sale, held Adam Thomson’s note, secured by the vendor’s privilege and special mortgage above mentioned. The refinery company could not successfully oppose the enforcement of the mortgage and privilege by a sale of the succession property, and when the sale took place it extinguished any rights which Thomson had in the property, and any which the refinery company might have predicated upon Thomson’s rights, which were subject to be defeated and were defeated through the mortgage and privilege.

Defendants did not buy from Adam Thomson or the succession of Adam Thomson, but from Harry T. Howard, who has not been made ■a party to the suit. They claim that there is no necessity for his being made a party, for the reason that in their purchase from him he transferred to them, with full subrogation to his rights, all actions ■or rights of action which he himself had or might have against prior vendors of the property. Howard himself did not buy from Adam Thomson, or the succession of Adam Thomson, but at a judicial sale, made in enforcement of a mortgage claim which he held against the Crescent City Sugar Refinery Company. How his claim originated is not shown. An examination of the marshal’s deed to Howard shows that no portion of Lot No. 111 was covered by his mortgage or his purchase — what he seized and what he purchased was the property adjoining Lot No. Ill, which was seized and sold as having a frontage of twenty-three feet two inches and seven lines (28 feet 2 inches and 7 lines) on Peters street, and as belonging to the Crescent City Sugar Refinery Company. We do not understand that the title to that property as so described has ever been questioned as not having really belonged to the Orescent City Sugar Refinery Company under its purchase from Adam Thomson, or as not having belonged to Thomson under his purchase from Mrs. Rosina Prague. Howard, at the sale, acquired title to the precise object on which he held a mortgage, and as between him and the company there has existed no claim in warranty. It is true that after Thomson had acquired this particular piece of property from Mrs. Prague, which is known throughout these proceedings as Lot “A,” of Pilié’s plan of October 25, 1881, he, in error as to the exact boundary between it and lot No. Ill, encroached upon the latter lot by building a wall upon it a little over eight feet beyond his line, and that after he had sold this Lot “ A,” together with other property, to the Crescent City Sugar Refinery Company, the company claims that that particular strip was intended to be purchased by them and intended to be sold to them by Thomson, not as falling under the description of the land sold in the act, but because in an act sous seing privé, which had formed the basis of the sale, and which was attached to the act of sale, Thomson had described the property as “the property known as the Orescent Oity Sugar Refinery, together with and including all the buildings and improvements thereon, the machinery, fixtures, engines, boilers, pipes, kettles, vats, bone-black and appurtenances therein contained or thereunto belonging, and now or herebefore in use or placed thereon for use, such as the whole now stands,” but no such contention, so far as we see by the record, existed as between Howard and the Refinery Company. As between them there seems to have been no perpetuation of the error which might have existed between Thomson and the company, no mistake nor misunderstanding as to exactly what was mortgaged or bought by him at the marshal’s sale, and there has been no breach of warranty by the company to him. When Howard purchased Lot “A” at the marshal’s sale he acquired a right of recourse in the event he should be evicted from that particular property, but he acquired no right in warranty against Thomson, on account of other property, by reason of the relations between him and the Orescent Oity Sugar Refinery Company. After Howard had acquired Lot “A” at the marshal’s sale, calling for a front on Peters street of twenty-three feet two inches and seven lines, he undertook to sell the same lot, among other property, as having a front on that street of “ thirty-one feet five inches and seven lines, more or less,” adding on, as will be seen, to the property actually bought by him the property in dispute in this case.

In his act of sale to Steers it is patent from the warranty clauses that he was aware he was going beyond the title acquired by himself at the marshal’s sale. The act declares that for the consideration, and on the ter .ns and conditions set forth therein, he sold, conveyed, transferred, assigned and set over the property described to the defendants, with a full guarantee against all troubles, debts, mortgages, liens, evictions, alienations or other encumbrances of every kind and nature whatsoever, binding himself and his heirs to defend the property and appurtenances conveyed against all legal claims and demands, which warranty, however, in so far as it concerns eight feet three inches nearest St. Joseph street, of the front of Lob “ A,” is limited to the defence of any suits in leference thereto, and the payment of all attorney’s fees and costs that the purchasers may incur, and in case of loss or eviction therefrom, the vendor shall only be liable to pay one thousand dollars, which was fixed as the price or value of said eight feet and three inches, exclusive of said attorney’s fees and costs.

We see no claim in warranty against the succession of Thomson as arising from the purchase of this small strip of land from Howard by the defendants. The deed to Howard did not pretend to convey to him title to it. There is no privity between Howard and the succession of Thomson in regard to it, and he has set up no such claim.

Defendants contend that in the act of sale to them, Howard transferred to them all the rights and actions of warranty to which he was or might be entitled against all former proprietors of the property and appurtenances therein conveyed, subrogating them co the said rights and actions to be by them enjoyed, and exercised in the same manner as they might or could have been by himself.

Granting that under such a clause the last purchaser could at once and directly attack the most remote vendor liable under the warranty, we think the links were broken between Howard and the succession of Thomson. He had no claim against the Orescent Oity Sugar Refinery Company in respect to the property in contest here, and could transfer none against it nor against the succession of Thomson to the defendants. We see nothing in the record by reason of which Howard, or any one holding under him, could examine into and avail himself of the relations existing between Thomson and the Orescent Oity Sugar Refinery Company. The act of mortgage of the company to Howard is not in the transcript. We have no reason to suppose that it contains a transfer to Howard by the company of any distinct independent claim or right of action which the company has or pretended to have against Adam Thomson in respect to this strip of land, with reference to which there is no evidence that the parties were then contracting. Howard’s own contract is the measure of his rights. If he got everything which that contract called for, he could ask no more.

In reaching our conclusions in this case we have been called upon to deal with a-very unsatisfactory record, and from the course pursued by the parties, to assume some matters which should have been fixed by positive evidence. As matters stand and appear to us we think the judgment appealed from is correct, and it is hereby affirmed. t\ ,” '


text:
    No. 12,043.
    Succession of Louise Aron, Deceased Wife of F. L. Ney.
    Proceedings taken by heirs of age to foreclose their mortgage against community property which had been adjudicated to the surviving husband and natural tutor are specially provided for in Bevised Civil Code, Art. 383, and are somewhat of the character of partition proceedings, and unlike those for the exe-: cution of ordinary money judgments or for executory proceedings.
    The principle announced in the case of Koehl vs. Solari, 47 An. 890, as essential to the effectual removal of the. legal mortgage of a minor heir from the property sold in pursuance of such proceedings, is affirmed.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      E. Laizer and Gabriel Fernandez for Plaintiffs, Appellees,
    cite: ■C. O., Arts. 271, 321, 333; 16 An. 370; 24 An. 603; 35 An. 829 ; 47 An. 895; 46 An. 1267; 25 An. 53; 33 An. 305, 1213.

      E. J. Meral and Robert Legier for Defendant, Appellant,
    cite: Arts. 316, 317, 322, C. C.
    Submitted on briefs March 27, 1896.
    Opinion handed down April 20, 1896.
   The opinion of the court was delivered by

Watkins, J.

This is a proceeding by rule to compel Edmond Rixner to accept title to real property situated in New Orleans, and complete an adjudication thereof to him by the civil sheriff in pursuance ■of an order of court; and from a judgment making the rule absolute •and requiring the defendant in rule to comply with the terms of the adjudication by paying the whole price into court, there to remain subject to the order of the court, and not to be withdrawn until the minor’s interest therein shall have been perfectly secured and a proper reinvestment made of his share thereof, and thereupon the minor’s mortgage against the property shall be canceled and erased, and title to said property passed to him unincumbered, he has prosecuted this appeal.

The facts are substantially as follows, viz.:

Frederick Ney was married to Louise Aron, and she died in the city of New Orleans on the 1st of September, 1879, leaving with her surviving husband seven minor children as the issue of their marriage. That said surviving husband qualified as natural tutor for said minors and caused an inventory to be taken of the property on hand, all of which was community; and he caused an abstract thereof to be duly inscribed in the book of mortgages to operate as a legal mortgage thereon in favor of the minors. That subsequently said father caused the whole of the property to be adjudicated to him, in pursuance of the provisions of the Code, at the price of five thousand'three hundred and one dollars and fifty cents, and gave a special mortgage thereon in lieu of the legal mortgage in favor of the minors, as above specified — said sum being the amount of the appraisement in the inventory, and entitling each heir to the sum of two hundred and six dollars and eighty-nine and two-thirds cents, after deducting the debts of the community.

On the 2d of August, 1898, Frederick L. Ney filed a petition praying to be appointed tutor to his minor brothers and sisters, on the ground that his father, and their natural tutor, had disappeared since the 28th of January, 1882, and had not been heard from since that date, and that his whereabouts was unknown.

On the 10th of October, 1893, Frederick L. Ney, Bertha JosephineNey, Henry Francis Ney, Walter L. Ney, majors, and John Paul Warren Ney, an emancipated minor over the age of eighteen years, filed a petition before the Civil District Oourt, representing that the succession of their mother was opened and that their father had qualified as natural tutor; that an inventory of the community property was taken; that after paying all debts their interest amounted to the sum of two hundred and six dollars and eighty-nine and two-thirds cents each, and their rights therein adjudicated to their father, who gave a special mortgage in their favor to secure their interest on property more fully described in that petition — alleging the disappearance of their father and the death of the under-tutor; showing that all of the heirs were of age with the exception of Sidney Joseph Ney, still a minor; averring that no settlement was ever made to them by their father of the share coming to them from their mother’s succession; that no account was ever rendered to them since their majority, and besides, that their father owned other property in this city more fully described in that petition; they allege also that they are entitled to an account from their father, who having disappeared and not having been heard of for so many years is an absentee, to whom and for whose proper and legal representation a curator ad hoc should be appointed.

On the presentation of that petition, an order was rendered by the District Court appointing a curator ad hoc, ordering him after due proceedings to file an account, and that ljudgment be rendered in favor of plaintiffs and agatnst their father, F. L. Ney, condemning him to pay to plaintiffs the amounts due to them, ordering property described and numbered in the petition to be seized and sold for cash, by Spear & Escoffler, auctioneers, and that from the proceeds of sale the amounts due the plaintiffs be paid to them.

On the 6th of February, 1895, a petition was filed by the plaintiffs asking that a sale be made of the property in controversy, and upon the 24th of April, 1895, a sale was ordered and subsequently made; and same having been adjudicated to the defendant in rule, he declined to accept the title tendered him for the following reasons, viz.:

1. Because the minor, Sidney J. Ney, was not represented in these proceedings by a duly qualified tutor; and, that if said tutor had legally qualified, that the interest of Frederick L. Ney, his father and tutor, in said property was encumbered with a legal mortgage in favor of said minor.

2. Because there is no judgment against said absentee which could justify the sale of his property; and that, even admitting there was such a judgment, his property only could have been sold in execution thereof by means of the writ of fieri facias.

It is admitted on behalf of the heirs that, in the proceedings above referred to, they appeared as co-mortgagees against Frederick L. Ney, tutor, as an absentee, for an account and final settlement by means of a curator ad hoc, the minor being brought into court through citation to his under-tutor.

But, while proceeding as mortgage creditors, they mentioned the property as being of a sort that is not susceptible of division in kind, and prayed for the convocation of a family meeting to determine that question as preliminary to a partition thereof by licitation.

Their petition is concluded by a prayer that “after due proceedings had, petitioners have judgment in their favor, ordering the sale of the above property to pay them the amount due and owing to them from the succession of their deceased mother,’-’ and in due course of proceedings the following judgment was rendered, to-wit:

“ It is ordered, adjudged and decreed that there be judgment in favor of plaintiffs, * * * recognizing them as creditors of the succession of their mother, Mrs. Louise Aron, each in the sum of two hundred and six dollars and eighty-nine cents, * * * ordering the sale of said property to pay the amount due and coming to them as heirs of this succession.”

In the course of the written opinion of our learned brother of the district bench, he says:

“ Revised Civil Code, Art. 333, is the basis of this proceeding and has been followed. The family meeting advised the sale, and there is ample from the price bid by defendant for the property to pay the minor, as well as the majors, and by the express terms of that article the legal effect is to relieve the said minor’s mortgage from the property sold, and pass the title free of incumbrance to the defendant as purchaser.
“The mother’s succession was not in the case — had- been closed to all intents and purposes, the tutorship remaining; and, while it was true that petitioner’s rights arose out of said succession, yet the proceeding was taken against the absent tutor and the mortgaged property. * * *
“The action is manifestly under said article, and as all necessary formalities were had, for the minor as well as the majors; and as the said absent tutor was represented, and the amount as fixed in his account before his disappearance was found still to be due, all requirements of substance were amply met, etc.
* * * if* SfSJfcSfi*
“ I think the action of the petitioner was definite and based on the law, and that the judgment Was sufficient to base the sale of the property upon. See Succession of Corrigan, 42 An. 65; see City vs. Seixas, 35 An. 41.
“I do not see that the law requires a writ of fi. fa. under the special proceedings provided for in R. C. C. 333. The order of court, duly certified to the sheriff, was, I think, a sufficient warrant — a writ for the sale — and that a good sale has been effected, and, for this technical objection, ought not to be defeated.”

The foregoing reasons are sound, and the proceedings in exact conformity with the provisions of the Revised Civil Code, Art. 333, and the title to the purchaser is good and valid with respect to the major heirs at least.

And with respect tó the mortgage of the minors the judge a quo further says:

“As above shown, in the proceedings herein taken the family meeting and under-tutor acted and advised for the minor. Under the terms of R. O. O. 333 this is the direction of the law. I think that what has been beneficially done after much cost and trouble, and delay, ought not to be undone; and by applying the rule (announced in) Koehl vs. Solari, 47 An. 890, I think that the rights of the minor can be preserved, and that the purchaser can obtain an unincumbered title. If he pays the entire purchase price into the registry of the court the rights of the minor will be fixed and the funds due him held subject to the court’s order until such time as the tutor may give bond and secure the rights of said minor.”

We think the judge properly appreciated and applied the legal principles announced in Koehl vs. Solari, and we affirm their correctness.

Entertaining these views, we regard the title tendered as legal and valid, and that upon due compliance with the opinion and decree of the court a qua the minor’s legal mortgage will be effectually removed from the property.

Judgment affirmed.


author: McEnery, J.

text:
    No. 11,927.
    J. & M. Schwabacher vs. Francis Leibrook.
    Where several parties have obtained and recorded judgments against a common debtor, who prior to the obtaining of the judgments made a simulated sale of his property, on the return of the property to the debtor the judicial mortgages will rank according to the date of their recordation.
    Where the debtor puts a special mortgage on the property before transferring it, which was null, and this mortgage and the note evidencing the pretended debt is purchased for an insignificant amount from the holder by one of the creditors pursuing the property, he can not assert the rights of an innocent holder against the other creditor who is also pursuing the property and who has • attacked the mortgage.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      W. 8. Benedict for Plaintiffs, Appellants.

      Denegre, Blair & Denegre for American National Bank, Defendant in Rule, Appellee.
    Argued and submitted April 6, 1896.
    Opinion handed down April 20, 1896
   The opinion of the court was delivered by

McEnery, J.

On November 3, 1893, the plaintiff obtained a judgment against the defendant for twenty-five hundred dollars, with eight per cent, interest from the 26th December, 1893. This judgment was recorded 4th November, 1893.

The American National Bank obtained judgment against the defendant October 27, 1893, for the sum of three thousand dollars, with eight per cent, interest from 25th September, 1893. This judgment was recorded 31st October, 1893.

The last judgment'has priority over the first, and ranks it as a judicial mortgage.

Both of these judgment creditors, about the same time and in the same court, instituted suits to have restored to its possession certain property which had been transferred by the defendant, Leibrook. Both obtained judgments as prayed for.

On the 23d January, 1895, the judgment creditors, J. & M. Schwabacher,' issued an execution on their judgment, seized and sold the property recovered from the defendant in the revocatory action. The net proceeds were two thousand one hundred and ninety-three dollars and fifty-two cents.

J. & M. Schwabaeher obtained a rule to cancel certain mortgages on the property, among the number that of the bank.

The defendant, Leibrook, had executed a special mortgage for one thousand five hundred dollars on the property in favor of one Larkin. In the bank’s suit to set aside the fraudulent conveyances, in which the mortgage note was assumed by the vendee, this special mortgage was attacked. The special mortgage and the note were declared null and void. It was in the hands of a third party, and J. & M. Schwabaeher purchased the same for two hundred and twenty - five dollars. They had full knowledge of the bank’s suit. The note was overdue.

The questions presented are, which judgment creditor is to be paid in preference out of the proceeds of the sale of the property returned to the debtor, and whether J. & M. Sehwabaeher are entitled to be paid the full face value of the note.

If the contention were among the ordinary creditors seeking the return of property to the common debtor, the rule applied in Bank vs. Cotton Press Company et al., 39 An. 834, would have full force and effect. All creditors have a right to intervene in the first revocatory action, and in separate suits to pursue the same debtor, and to share ratably in the proceeds of the property, provided they assert their rights with apparent and reasonable diligence.

When the property is returned to the debtor it is as though he had never parted with it, and all who have liens or mortgages on it still retain them.

Article 1977, O. G., says “the judgment in this action, if maintained, shall be that the contract be avoided as to its effects on the complaining creditors, and that all the property or money taken from the original debtor’s estate, by virtue thereof, or the value of such property to the amount of the debt, be applied to the payment of the plaintiff.” It is evident, where there are several plaintiffs, the payment must be made according to the rank of their claims.

The action of the plaintiffs against the defendants who held the property was en simulation. The defendants never had any title to the property. The vendor had never parted with the property. It was still his, and the simulated vendee held it only for the vendor. Judgments obtained against the vendor necessarily cover the property in the hands of the simulated vendee, and the first in recordation has a preference, unless the simulated and fraudulent vendee has encumbered it.

During the pendency of the suits against the vendees of Leibrook they retroceeded the property to him. It is alleged as the reason therefor the pendency of said suits and the consideration of the transfers was the payment to them of the amount they had paid to Leibrook, and placing them in the position they were before the sale. When the property had been returned to Leibrook, J. & M. Sehwabaeher made their seizure. It is evident the judicial mortgages against Leibrook affected the property in the order in which they were registered or recorded.

Whatever value the note had in the hands of a third innocent holder, the firm of J. & M. Sehwabaeher, who obtained it with full knowledge of its nullity, can not assert the privilege of an innocent holder who was with them pursuing a common debtor to have his-property restored to him, and a mortgage affecting the same, and the note, accompanying it, • declared a nullity. With equal propriety he might have purchased the property sought to be restored to the-debtor’s estaté.

Judgment affirmed.


author: Breaux, J.

text:
    No. 12,060.
    Antoine Mazerat vs. Virginia Godefroy, His Wife.
    A judgment of separation a mensa et thoro does not warrant a judgment of divorce-a vinculo, on the petition of the one against whom it was obtained, if the spouse in whose favor the judgment of separation from bed and board was pronounced pleads in defence of the suit willingness to become reconciled.
    APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      J. D. Kiernan for Plaintiff, Appellant,
    cited Johnston vs. Johnston, 32 An.-1189; Glandi vs. Peat, 43 An. 161.

      Harold W. Newman for Defendant, Appellee.
    Submitted on briefs April 6, 1896.
    Opinion handed down April 20, 1896.
   The opinion of the court was delivered by

Breaux, J.

About nine years ago the defendant obtained a judgment of separation a mensa et thoro from the plaintiff, her husband.

The custody of the children, issue of their marriage, was given to the wife, in the decree of separation.

In the year 1895, the plaintiff, averring that his wife obtained the judgment of separation, instituted this suit for a divorce a vinculo.

In addition to this judgment he assigns a number of causes of complaint, such as, that he has made every reasonable endeavor since-the decree of separation to become reconciled to his wife; that he has contributed to the support of their children; that his wife lias sought and still seeks to alienate from him the affection of their children.

Not one of the causes assigned in his petition can be deemed sufficient for a divorce.

The defendant admits that she was married to plaintiff and that she obtained from him a separation from bed and board.

She denies that she refused to become reconciled to the plaintiff. She says, on the contrary, she desires to become reconciled; that the plaintiff refuses to support their children-.

She prays that plaintiff’s demand be rejected, and that he be condemned to support and educate their children. The District Oourt acted upon an exception of no cause of action and dismissed plaintiff’s demand.

From the judgment the plaintiff prosecutes this appeal.

The appellee prays that the judgment be affirmed.

The causes of divorce a vinculo are recognized by statute. The causes in this case would be enlarged if we were to determine that the defendant is entitled to a divorce. Instead of adopting an interpretation admitting other causes for divorce, we think it proper to adhere closely to the terms of the law.

The causes for divorce are properly subject to strict interpretation. The indissolubility of the marriage is the rule; it is (or should be) regrettingly, that the legislator admits exception to the rule. In support of these statements we refer to a few prominent events.

The Master, himself, taught that man should not sever ties that have received the divine sanction; that the will of the Creator was manifested by the institution of marriage. He admonishes the husband not to cast out the wife of his youth with whom he has long abided, now that she is old, and concluding, the solemn and imposing lesson, which should command the consideration of all men, enjoins :

Quod Deus Conjunxit, Homo Non Separet.

The doctrine of the sacramental nature of marriage received general recognition and was the accepted doctrine at the beginning of the reformation of the fifteenth century. No offence of either of the spouses was a cause for entirely dissolving the marriage covenant. It was confirmed by the Council of Trent. The reformers at the time also planted themselves upon the gospel, but under a different interpretation agreed that divorces should be permitted for grave causes. The Civil Code of France allowed divorces for enumerated causes. These provisions, permitting divorces, were repealed during the religious reactionary movements of 1816. The law adopted that year expunged divorce from the Civil Oode and reenacted the law which permitted separation from bed and board only, and during many years there were no divorces a vinculo matrimonii in France.

There is a law permitting divorces at this time.

In England from an early period there was no divorce a vinculo sanctioned for causes subsequent; only a separation from bed and board was allowed which did not authorize either of the spouses to marry again.

This practice came from the common law, which held marriage a sacrament and that it could not be dissolved for any cause.

By statute of years comparatively recent, divorces are now allowed in England for the gravest causes, especially enumerated. They are not left to be determined by inference or interpretation.

In the other States of our Union, jurisdiction is conferred upon the courts with the causes named in the statutes.

In a few jurisdictions the causes are as numerous as Thebes had gates, and they are moreover enlarged by the liberal interpretation of the courts. The disorder and distress it has occasioned in certain cases in families are persuasive arguments against latitudinarian interpretation.

In Louisiana, under Codes of 1808 and 1825, separation from bed and board did not dissolve the bond of matrimony, and the separated husband and wife were not permitted to marry again.

Divorce is permitted since, for stated causes. The courts have not sought to enlarge them by interpretation, as will be seen by reference to the case of Johnston vs. Johnston, 82 An. 1139.

The historic features to which we have briefly alluded teach the necessity of conservative interpretation.

Although the interpretation of the doctrine to which we have referred has not always been uniform, all moral theology teaches, without discussion, that the bonds of marriage ought not lightly to be dissolved.

The conclusion reached by us also finds support in the fact that each, the plaintiff and the defendant, alleges an attempt at reconciliation.

The defendant’s offer to become reconciled concludes the plaintiff.

Upon that point we translate from the commentaries of Mr. Laurent: Should the spouse who has obtained a separation from bed and board, after having selected the remedy in conformity with his wishes, and possibly of his creed, be permitted to maintain that condition without any possibility on the part of the defendant of obtaining a divorce on this judgment after the time has elapsed? His views, in answer to the question which he propounds are favorable to a defendant’s position in such a case and would support plaintiff’s contention here (defendant in the judgment of separation a vinculo) were it not that he adds: The one who has obtained the separation from bed and board has no cause of complaint if he be condemned in proceedings for divorce, for he is not constrained, as it depends upon the plaintiff in suit for separation from bed and board to reinstate the marital relations, and it is only on the refusal of such a plaintiff that divorce is pronounced. Yol. 3, Sec. 108.

Here the defendant, who was the plaintiff, as we have stated, in the suit for separation from bed and board, not only has not refused reconciliation, but especially avers her willingness to become reconciled. This offer precludes the husband from obtaining a judgment of divorce on the ground alleged, that no reconciliation had taken place.

It is evident that plaintiff can not recover a judgment.

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


author: Breaux, J. Watkins, J. McEnery, J.

text:
    No. 12,147.
    State of Louisiana ex rel. Supervisors of Election of Plaquemines Parish vs. A. E. Livaudais, Judge, James Wilkinson Respondent.
    While the courts can have no right to pronounce an abstract opinion upon questions entirely political, to compel officers to perform specific duties imposed upon them by law, whether relating to elections orto any other duty devolving upon them, writ of mandamus issues to compel a proper execution of a purely ministerial duty.
    0 N APPLICATION for Writs of Prohibition and Certiorari.
    jB?. Howard McCaleb, for Relators.

      James Wilkinson, for Respondents.
    Submitted on briefs April 15, 1896.
    Opinion handed down April 20, 1896.
   The opinion of the court was delivered by

Breaux, J.

The relators complain of a judgment rendered (at the instance of one of the candidates for a judicial position) by the respondent judge, and pray that the writs of certiorari and prohibition they invoke be made absolute.

The judgment complained of made the writ of mandamus peremptory.

It is true that mere abstract political questions are not within the jurisdiction of the courts. That the litigant has not the power before the court of using or directing the force residing in the body. politic in order that he may stand in judgment.

Thus, in State of Georgia vs. Stanton, 6 Wallace, 50, 78, the Supreme Oourt of the United States held that it would not restrain the defendants, who Represented the executive department of the government, from carrying into execution certain acts of Congress, as the questions presented were entirely political, and the plaintiffs had no personal right or interest in arresting the governmental .action proposed.

In several other cases cited by relator here the courts have declined to assume jurisdiction of questions entirely political in their character. These cases do not apply to the case under discussion.

The case here presented is one in which, it is alleged, a private right is involved, and the testimony, in some respects at least, goes far toward sustaining the allegation.

With the merits of the controversy we are not concerned in these proceedings. It suffices for the maintenance of that writ that the court has jurisdiction and the proceedings are in due form.

As relates to jurisdiction, although it has been held by this court that in the absence of special statutory authorization courts are without jurisdiction to entertain contested election cases, the rule has never been extended. so as to entirely exempt officers from all judicial control and relieve them from all responsibility however much they may violate the statutes adopted for holding elections.

Violations of the statutes may precede the elections requiring judicial action for their redress.

The question is not one of first impression in this court.

This court said in State ex rel. Patton, Register, vs. Judge, 40 An. 393-398, in passing upon the question of judicial cognizance of cases touching the conduct of elections: “No authority is or can be cited exempting public officers charged by law with specific ministerial duties in election matters from the same judicial control which is exercised over all other officers of the State with reference to similar duties.”

The question at this time is more peculiarly one of prematurity than jurisdiction.

In a contested election the questions here involved would be in the court’s jurisdiction if they are questions of violations of the statute and the violations prejudiced the rights of the complainant. •

It follows as a conclusion that there are some violations of the statutes which may be inquired into and passed upon, even prior to the election, when needful to protect rights actually infringed or incontestibly about to be infringed. As far as the right of the complainant is personal, the court has jurisdiction.

In regard to the value of the right involved, it embraces not only the right to hold office, if elected, but the right of franchise; the right to cast one’s vote in the manner and under the security intended by the statute. A great English judge has said: “A right that a man has to vote at the election of a member of parliament to rep - resent him, and there to concur in the making of laws which are to protect him in his liberty and property, is of the highest importance. ”

The right is not always appreciated and exercised with that importance in view. This does not detract from its value and importance.

It is is ordered and decreed that the preliminary order be dissolved and'the writ refused at relator’s costs.

Dissenting Opinions.

Watkins, J.

Upon mature deliberation I am satisfied that the controversy in the respondent’s court of which relators complain were and are purely political, and of which he had no jurisdiction, and our writ of prohibition ought therefore to be made perpetual. State ex rel. Woodruff vs. President, etc., 41 An. 846; State vs. Judge, 13 An. 89; State ex rel. Bonner vs. Lynch, 25 An. 267; State ex rel. Moncure vs. Dubuclet, 28 An. 698; R. S., Secs. 1417 to 1435, as amended by Act 106 of 1892.

The duties of police jurors with regard to the selection and establishment of polling places and the like are vested by the election-law in the discretion of those bodies as political functionaries.

Sections 9 and 10 of Act 181 of 1894; State ex rel. Blackman vs. Strong, Secretary of State, 32 An. 173.

McEnery, J.

The plaintiff is a candidate for a political office. To confer jurisdiction upon the lower court he made a jurisdictional averment as to the value of the office. He asserts no title to-the office. He is only offering himself for the office. His title to the same will depend upon the result of the election. When this is promulgated, if he has cause to complain, it will be time for him to-urge his claim to the office if he finds reasons therefor. No right of plaintiff is alleged to be infringed. I find nothing upon which to predicate an averment to give jurisdiction. A possible contingency, which may or may not happen, gives him no such right to the office that he can make a jurisdictional averment as to its value,

I think it is erroneous to say that the right that each citizen has to see that the election is properly conducted is of a value inappreciable in money, and by inference it exceeds the lower limit of the jurisdiction of the court below. Jurisdiction is given by the law. 2 Barb. 323; 3 Texas, 157.

The jurisdiction of the District Court is fixed by law. After the jurisdiction of the court has been fixed by law, the judge is without authority to assume that a right to which no value can be fixed has an imaginary one.

The conduct of the election is by law devolved upon the executive officers. The courts can not interfere in the manner in which the election is to be conducted without trenching upon the duties of the political department of the government, which is forbidden by the Constitution.

The interpretation of the election law in the manner of conducting the election devolves exclusively upon the political department of the government. In a proper case brought before it, the courts may put the election machinery in motion; that is, compel the election officers to perform a duty imposed upon them by law, but they can not restrain the election officers from the performance of a duty as they construe it. If the duties imposed upon the election officers are employed to perpetrate a fraud in a contest for office, these facts become matters of proper inquiry in determining whether the complainant was elected to the office by virtue of the election.

In my opinion there was an usurpation of jurisdiction by the District Court, and the writ of prohibition should be made perpetual.


text:
    No. 11,862.
    Boikens vs. New Orleans & Carrollton R. R. Co.
    Ordinarily, passengers on street ears are expected to alight with some haste.
    When, however, a person is infirm, or clumsy, or incumbered with packages or other hindrances, more prudence is required than ordinarily.
    The questions were whether the passenger was on the steps alighting from the car and thrown to the ground by too hastily putting the car in motion, or whether the passenger was,; after having alighted, rushing back to get a forgotten basket. In the former she has right to damages; in the latter case, she would not have.
    The ‘■estimony is conflicting. The jury and the District Judge, who saw and heard the witnesses, decided that the weight of the testimony was with plaintiff, and that the passenger was alighting from the car at the time of the accident. The court finds no reason to disturb the verdict.
    The damages fixed are not too large, and therefore the court will not reduce the amount.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Samuel Jamison and Gurley & Mellen for Appellee.

      John M. Bonner and Henry P. Dart for Appellant.
    Argued and submitted February 25, 1896.
    Opinion handed down March 9, 1896.
    Rehearing refused April 20, 1896.
   The opinion of the court was delivered by

Breaux, J.

This was an action to recover damages for injuries alleged to have been sustained through defendant’s negligence. Plaintiff avers: That, on the morning of June 5, 1895, she boarded car No. 34, belonging to defendant company, paid her fare, and, before the arrival of the car at the corner of St. Charles avenue and Delachaise street, notified the conductor that she wished to get out at the corner. That the car was stopped, and she was in the act of getting off. That she had two baskets, one small and the other large. That she placed the small basket in a convenient position on the platform, took the large basket on her left arm, took hold of the rail of the car with her right hand and stepped backward, but before she was off the car, endeavoring to place one foot on the ground, the car was put in motion. She was thrown off, and her right hand injured. The defendant filed an exception, averring that plaintiff entered into a compromise, wherein she acknowledged that the sum paid to her was in full payment of all claims. The receipt referred to states, as the declaration of the plaintiff, that the accident was due to her carelessness entirely, not being accustomed to the city cars, and that the defendant was not at fault. The.following is a copy:

“ New Orleans, July 14, 1894.
“ Received, New Orleans, July 14, 1894, from the New Orleans & Oarrollton Railroad Company a donation of ten dollars in full payment of all claims I have or may have against the said’New Orleans & Carrollton Railroad Company for an accident which happened to me on Delachaise and St. Charles avenue. It was no fault of the company or its agents, and was due to my carelessness entirely, not being accustomed to the city cars. This shall be my receipt in full.
her
“ Minerva X Boikens.
mark,
his
“ Mark X Thornton,
mark.
“Witnesses:
“ D. O. Daunoy,
“ J. P. Glynn.”

This exception was referred to the merits, and was, in effect overruled by the verdict and judgment. The defendant anwered, reserving the benefit of the exception, pleading the general denial, and specially averring that the compromise should have been attacked in a separate action, and not referred to the merits. Prior to the filing of the answer, plaintiff filed, with leave of the court, a supplemental and amended petition, setting forth that, at the time she filed her original petition, she did not know of the existence of the-alleged compromise, for the reason that it was procured by fraud and misrepresentation of the defendant and its employees, who thereby imposed upon her ignorance. The plaintiff admits that she signed the receipt and received ten dollars, but affirms that it sets forth a very different contract from the one the defendant says it is. The agents of the defendant, who were present at the time the receipt was signed, testify that everything was explained to her before she signed. Bat this receipt was pleaded, by way of exception,, against plaintiff, as an admission of fault and carelessness, and as an estoppel of further claim.

If the facts attending the fall and consequent injury are as alleged, the plaintiff, an ignorant old woman, is not concluded by this receipt. She was, at the time, in a suffering condition from the effects of the accident, and was presumably inclined to accept small amounts, believing that they would enable her to obtain relief. We can not attach conclusive importance, under the circumstances, to the mark affixed to the receipt by this ignorant old woman. It was a donation, or at any rate, the word “ donation” is written in the instrument signed. In this instrument she declares that she was not accustomed to the city cars, while, in reality, there were employees present who were aware of the contrary; that she was a frequent passenger, “ a patron of the road since many years.” Such a receipt, signed by any one of ordinary intelligence, would be binding and conclusive. It does not seem, as against this plaintiff, for reasons already stated, to be entitled to the weight that it would otherwise have. If the money was received under theimpressioD that it was a gratuity, although, in paying it, it was the intention of the defendant to get the signature-of the plaintiff, under the circumstances here the defendant can not obtain any advantage.

Before taking up and discussing the law points involved, we made a brief summary of the testimony, viz.: The plaintiff, as a witness,, said : That the. car was stopped and that she attempted to alight. She had two baskets, one large and the other small. She took up-the first on her right arm, having previously placed the small basket in a convenient position on the platform, and stepped backward to-get off. She took the rail of the car with her right hand. Her left foot was on the ground, and the other foot on the step of the car, when the car moved off, without giving her sufficient time to alight,. and caused her to slip. She fell on the ground, after having been dragged a short distance. Her right hand and shoulder were badly sprained. Three witnesses have testified in corroboration of this testimony. They are not careful in their statements, and their evidence is at times quite conflicting. They all agree in testifying that the plaintiff had not left the car when the accident happened. The first witness called for the defendant, testifies that she had already left the car, and that she stepped back and made a grasp at the small basket, on the front of the rear fender of the. platform, and was caught on the car and dragged. This witness further says, in answer to questions, that he does not remember putting his head out of the window.' “ Q. Have you ever tried, in one of those electric cars, to see whether you could see the step? A. Never have experimented with them. Q. Don’t you know it would be impossible to see the step from where you were sitting? A. From where I was sitting? Q. Yes; don’t you think it would be absolutely impossible ? A. Not unless I put my head out of the window.” The testimony of another witness for the defendant is substantially similar.

The plaintiff and her witnesses are, in giving their testimony, positive that she had not left the car. The witnesses for the defendant testify that she had already alighted, and that it was in her rushing back to get her basket that the accident happened. During the few moments of an accident, witnesses will seldom agree in regard to the facts, particularly if some one gets hurt. Generally each has his particular impressions, and relates the causes of the accident differently. Here it was the matter of an instant. The most conscientious and alert witness may have thought that she was, at the time, attempting to return to the car, when, inreality, she was holding on, in her fright, to escape from injury. The jury and the judge, who saw and heard the witnesses, and observed the manner of their giving their testimony, have concluded that the plaintiff was a passenger. We are reluctant to disturb their verdict. If she was on the car, as we infer she was, at the time, it only remains for us to apply the law in such cases. Any person actually on the car or in act of getting off, is a passenger, and the company is charged with the duty of looking to his safety ; and this involves the necessity on the part of the conductor of allowing the passenger time to get off the ear. We are constrained to hold that a passenger who is violently thx-own to the ground and injured by a car, too hastily put in motion, is entitled to damages. With reference to the quantum of damages: The injury received was violent, and caused severe pain. She was under medical treatment a number of months. Her attending physician testifies that the ligaments of the wrist joint — that is, the tendons which bind the joints — were sprained and removed from their place. The thumb tendon was also inflamed, and the functions of the fingers very much abbreviated. The pain extended to the elbow and armpit. At first he practised the passive motion; that is, gently moving the hand. Afterward he used the Faradio battery, and afterward applied a plaster cast, which she kept on during four weeks. She had not entirely recovered at the time the suit was tried. We think the amount of the verdict is reasonable, and should be affirmed.

The verdict and judgment of the court are therefore affirmed.


author: Nicholls, C. J.

text:
    No. 12,126.
    Morris Lewis vs. H. W. Brietling.
    The amount involved in this case is not within the jurisdiction of the Supreme Court.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.
   The opinion of the court was delivered by

Nicholls, C. J.