text:
    No. 9650.
    Sterling P. Carroll et al. vs. M. A. Cockerham et al.
    A judgment of separation between husband and wife as to third persons, only proves rem ipsant. hTo legal presumption of its correctness arises from the mere signing tbe decree.
    Where such judgment is charged fraudulent and simulated and proof has been adminis tered going to sustain such* charge, it is incumbent on those interested in maintaining such judgment, that its reality and the validity of its consideration should be estab* lished by evidence aliunde.

    Where a husband mates a transfer to his wife without any valid consideration and such transfer exceeds the disposable portion of his estate, his forced heirs after his death may, by suit, demand that the transfer be annulled in excess of the disposable portion even though the property has passed into the hands of third persons, and can be brought bach into the succession of the transferror or donor iiee from all charges created by the transferree or donee. C. C. 1516.
    Contracts between husband and wife are restricted to the exceptions in C, O. 2446, and all those outside of the limits therein prescribed are null and void.
    A probate sale, made in pursuance of an agreement between the executor of the estate to which the property belongs and his partner in business, by which such partner is to buy the property in his own name but for the benefit of his firm, is void.
    A plea of estoppel cannot be maintained where it appears that the party against whom the plea is directed was ignorant of the true facts relating to the matter which formed the subject of the plea. Watkins vs. Cawthorn, 33 Ami, 1194. .
    A party is not estopped from prosecuting a claim because the same claim was urged in a previous suit on which he took, seasonably, a voluntary non-suit.
    A PPEAL from the Tenth District Court, Parish of Bed Biver. A Hall, J.
    J}. JE>. Watkins and S. A. Hull for Plaintiffs and Appellants :
    i.
    A partial history of this case may he found in the following opinions of this Court, viz: 32 Aun. 141; 34 Ann. 423; 35 Aim. 281.
    II.
    Of the exception of no cause of action. This is an action of reduction oí an excessive and inofficious donation brought by two forced heirs against a third person, for the recovery of two-fiffchs of two-thirds of certain real estate that was donated by their father to their mother, “contrary to natural duty,” and in disparagement of their legitime, and which immovable was alienated by said donee or her executors. E. C. C. 1502, 1504, 3545; 11E. 302; 30 Ann. 726; E. C. C. 1516,1517; 32 Ann. 637.
    The doctrine announced in 35 Ann. 35, 281, to the effect that in such a suit plaintiffs must bo regarded as creditors, must be controlled by E. C. C. 1504.
    III.
    Act No, 5, approved «Tune 17, 1884, is a remedial statute, and amends E. C. C. 2239, and repeals by implication E. O. C. 2236, vide 24 Ann. 25; 26 Ann 584; 15 Ann. 110; 29 Ann* 608; 17 La. 476; 7 0. S. 8; 12 Ann. 554.
    IV. .
    A judgment of separation between husband and wife only proves rem ipsam. 9 Ann, 100; 8 Ann. 27; 20 Ann. 204 ; 5 Ann. 401; 4 Ann. 435; 19 Ann. 94, Bogan vs. Einley.
    V.
    30 Ann. 966, Brown, Administrator, vs. Brown, cited by the judge a, quo in his opinion, is not in point. In that case the parties to the dation assailed were father and daughter; while in this they are husband and wife. In the former, both parties were sui juris; hut in the latter they are not.
    In 15 Ann. 64, Carter vs. McManns, the dations complained of were executed by a father to his son, and suit was brought to revoke them under E. C. O. 2444
    VI.
    Transactions between husband and wife are restricted to the exceptions provided in E. C* C., 2446. All those outside of the limits therein prescribed are absolutely null and void 4 Anu. 65; 1 Aun. 305; 2 Ann. 483; 7 Ann. 92; 11 Ann. 265; 21 Ann- 466; 4 La-. 421.
    VII.
    The husband is restricted in making conveyances to his wife to Such as shall have a legitimate cause, E. C. C. 2446.
    The true.value of the property conveyed must not exceed the- amount of the debt'of the husband to his wife. It is not sufficient that a part of the price was real. Inter* st antecedent to judgment cannot be allowed. 19 La. 581; 3 Ann. 611: B. C. C. 2386, 2402. There must be an adequate consideration. 30 Ann. 750, Lehman, Abraham & CoM vs. Levy, 5 Ann. 494; 23 Ann. 439; 29 Ann. 585: 4 B. 117.
    VIH.
    The wife, nor one holding title under her, can be allowed to show a wholly different consideration for a daüon from the one that is expressed in the instrument. 34 Ann. 689. Chaffe, Syndic, vs. Scheen; B. C. C. 1900.
    No legal presumption of the correctness of a judgment of separation arises from the mero signing of the decree. 12La.303; 7N.S.460; 6Ann.730; 12 Ann. 193; 15 Ann. 33; 11 La. 33; 10 Ann. 691; 6 Ann. 647; 12 B. 98; 4 La. 419; 10 Ann. 85; 11 La. 534.
    X.
    If the ven dor continues in possession after the sale, and to act and hold himself ont to the world as owner, there is reason to presume the sale is simulated, and the burden of proof is rn the purchaser to establish the reality of the sale, and the payment of the price. B. C. C. 2480; 8 Ann. 506; 11 Ann. 163; 12 Ann. 666; 15 Ann. 555; 15 Ann. 616 ; 16 Ann. 284; 23 Ann. 258; 13 Ann. 340.
    XI.
    A probate .sale made íd pursuance of a written agreement entered into between an executor and his partner in business is an absolute nullity, and no title passes to the purchasor. notwithstanding he is the holder of a first morfcgago against the property sold. 37 Ann. 275, Stanbrough vs. McClellan ; 33 Ann. 748, Heirs of “Wood vs. Nicholas ; B. C. 0.1146; 16 Ann. 135; 31 Ann. 219, Linn vs. Lee.
    XII.
    The registry of a judgment only operates as a judicial mortgage against all the immovables which the debtor actually owns or may subsequently acquire. B. C. C. 3228, 3320.
    • The eviction hy the mortgagor by a better title than that of the vendee which he holds, relieved the property from all liens acquired or granted under the impression that the title was good.” 8 B. 485, Beauliea vs. Burst.
    XIII.
    The possession of a purchaser under a title translative of property, is essential to the validity of a mortgage acquired against property held under a simulated conveyance; the continued possession of the vendor of such a title would put the mortgagor on Dotice, and deprive him of all equity and place on him the burden of 'proof. 29 Ann. 607, Hunter vs. Buckner; 11 Ann. 407, Boster vs. Foster.
    The special mortgage occupies the same situation as a title.
    XIX.
    Under the textual provisions of the Civil Code, “ immovable property that is brought into the succession through the effect of reduction, is brought into it without any charge of debt or mortgages created by the donee.” B. C. C. 15J6.
    The action of reduction is assimulated to that of collation in matters of partition ; where the property alienated by an inofficious donation, is brought back it is •* united to the mass of the successions free from all charges created by tbe donee.” B. C. C. 1264; 32 Ann. 637.
    But in this case the mortgage creditor of the donee would still retain his mortgage on other property of the donee. B. C. C, 1265.
    XX.
    The failure of J. H. Scheen and M. A. Cockerham to appear and testify to the reality of the sales attacked as simulated, and without consideration is convincing evidenoe of the truth of plaintiffs’ charges of fraud and simulation. 33 Ann. 1057, Atkins vs. Xing, Administrator. -

      XXI.
    No estoppel is raised on the law. 30 Ann. 1309, ChaíFe &Bro. vs. Morgan; 22 Ann. 368, Abbott vs. Welbur; Bigelow on Estoppel, p. 293.
    It is a well settled principle that coverture disqualifies a woman from contracting, and her deed does not operate as an estoppel. An infant or minor, not being sui jttris will not •be estopped by his deed during infancy nor afterwards, unless he ratifies it. Bigelow on Estoppel, p. 276; 34 Ann. 288; Gillespie vs, Twitchell, 4 Ann. 231; 6 Ann. 397; 16 Ann. 213; 7 Ann. 293; 13 Ann. 4; 12 Ann. 852; 34 Ann. 169; 23 Ann. 647.
    Estoppel as to married women applies alike as to minors.
    XXII.
    The tutor for plaintiffs, when they were minors, had a perfect right to take a voluntary non-suit in Boone & Cockerham vs. Carroll, 35 Ann. 281, That constituted no abandonment of their claims. It preserved them from the fate of the intervenors in that suit. That suit did not form res judicata even as to intervenors. They did not have a hearing on the merits •
    The plaintiffs’ plea of no cause of action was sustained.
    The right of plaintiff was clearly and undeniably left open, and at large to be prosecuted herein. 33 Ann, 1194, Watkins vs. Cawthorn.

      ¡Egan and Pierson for Defendants and Appellees:
    1. A suit by them to be recognized as owners by inheritance of property conveyed by the ancestor is not a suit to enforce or protect the legitime of such heirs.
    2. Forced heirs have only the right to reduce donations made in violation or to the prejudice of their legitime. C. C. 1502.
    3. Forced heirs may bring the revocatory action against the acts of tbeir ancestors only to the extent of their legitime and for the purpose oí protecting same. Kerwin vs. Insurance Co., 35 Ann. 35; lb. 284.
    4. To the extent of tbeir legitime children are not considered as heirs but as creditors, and as such may resort to the revocatory action to enforce and protect their legitime. Maples vs. Mittie and Sarah, 12 Ann. 759; 4 Ann. 502.
    5. To sue to enforce or protect the legitime the heir must allege the aggregate of all the property of the donor at the time of his death, and the value of the property disposed of by donation and the amount due by the deceased donor at the time of his death, to form a basis upon which the court can estimate the legitime of the forced heir. C. C. 1505,
    6. No amendment can be allowed to the pleadings after an exception of no cause of action has been sustained by the court. 35 Ann. 281; 34 Ann. 323 ; 37 Ann. 417.
    7. The prayer by the forced heir to be recognized as owner by inheritance of an undivided interest in property disposed of by the ancestor cannot be sustained to enforce or protect the legitime of such heir. The court cannot determine what interest in the property claimed will equal the amount of reduction such heir is entitled to eDforce or protect his legitime.
    8. In a suit to revoke the act of the ancestor by the forced heir to protect or enforce the legitime, the succession should be made a party where the amount of the legitime has not been previously liquidated by a judgment in favor of the .heir, C. C. 1972.
    9. Third persons acquiring a mortgage or a title to property upon the faith of the public recorded titles of the persons from whom they acquire cannot be affected or impaired in their acquired rights upon or to such property by any latent of secret equity existing between tbeir authors and other persons. Nor can such acquired rights be evicted for any matter not apparent upon the fact of the records. Sehepp vs. Smith, 35 Aun. 6; Hunter vs Buckner & Bro., 29 Ann. 697.
   The opinion of the Court was delivered by

Todd, J.

The plaintiffs, as forced heirs of Madison Carroll, sue to annul a elation en paiement of a plantation described in their petition, made by the said Madison Carroll to his wife, Mrs. E. A. Carroll, in 1866, and also subsequent conveyances of the same, judicial and conventional, by or through which it passed to the defendant and present claimant. Madison Carroll died shortly after the dation was executed and plaintiffs base their action on the ground that this disposition of the property was without consideration and infringed on their legitime as forced heirs of their father, the said Madison Carroll, who died intestate.

The facts are briefly these:

Plaintiff, a brother and two sisters are the issue of the marriage of Madison Carroll and Mrs. E. A. Carroll.

On the--of March, 1866, Mrs. Carroll obtained a moneyed judgment against her husband, M. Carroll, for $2500 with legal interest from 1856.

Mr. Carroll died in January, 1867, and Mrs. Carroll in 1876.

On the death of the former, the Home plantation, the subject of this controversy, was not placed on the inventory of his succession. It was inventoried after the death of Mrs. Carroll as the property of her succession.

Mrs. Carroll left a last will, of which Julius Lisso and her son Madison Carroll, Jr. -were the executors.

On the 17th of October, 1877, the Home plantation was sold at probate sale at the instance of Lisso, executor, and adjudicated to J. H. Scheen.

On the 4th of March, 1878, Scheen sold the property to Madison Carroll, Jr.

On the 17th of February, 1883, the property was sold under a judgment against J. H. Scheen in favor of one John Cockerham, to enforce a judicial mortgage on the land, resulting from the recordation of said judgment of date December 1,1877, and was adjudicated to the defeudant, M. A. Cockerham, who claimed to be the owner of the judgment and the judicial mortgage' by transfer from the executors of John Gockerham’s estate.

1, There was exception filed to the suit of no cause of action, which was disposed of by the court a qua in these words, quoting: “Peremptory exception tried and sustained, unless the plaintiffs amend their petition in three days, setting forth the amount of debts of Madison Carroll at his death, and the amount of their legitime.”

No objection was made at the time by defendants’ counsel to the terms of the ruling and the condition expressed therein; but in'-this Court it is charged that it was unwarranted to the extent that it allowed plaintiffs the privilege of perfecting their petition by an amendment. In the absence of any objection to the order, seasonably made, and the failure to retain any bill to the ruling, we are inclined to the opinion that his complaint now urged here for the first time, cannot avail him. Be that as it may, however, we think the ruling was a proper one. The exception in effect charged that the allegations of the petition were insufficient to justify the relief sought, inasmuch as they did not afford the information by which the amount of the legitime could be determined. We think, under the circumstances, the ruling was a proper one and the defendant was not prejudiced thereby.

It was not an absolute dismissal of the suit, but a dictation or suggestion of the court that it would be dismissed unless an amendment supplying the alleged omissions was filed in the delay granted therefor.

The defendant cites in support of his contention several decisions of this Court. They are not in point, they only go to the extent, that after there has been an unqualified dismissal of the suit on an exception of no cause of action, plaintiff cannot he permitted to amend. Besides and behind all this, the fixing or measuring the amount of the legitime of a forced heir, is a matter of evidence, and since the legitime was distinctly claimed in the original and amended petition and the property fully described— the transfer of which was sought to be annulled to make up their legitime — and its value given, and it was averred that all other property left by the decedent had been disposed of and applied to other purposes: Such allegations sufficed to authorize the admission of all the proof required and subsequently offered to adjust and determine the amount of the legitime. In other words, the judge a quo was in error in sustaining, even conditionally, the exception urged.

This last consideration will also meet another exception of the defendant, the one made to the amendment fixed by the plaintiffs under the requirements of the order of the court referred to, to the effect that it was not fixed in time, and should have been rejected, that is, that it was not presented within the three days allowed. This further exception comes within the well-established rule, that in this instance the time presented was not of the essence of the order on .the subject treated of therein, and therefore the order could be complied with even after the term elapsed, in tire absence of any pleading or plea interposed by the opposing party before filing.

Besides W. A Cockerham, the party in possession of the land in controversy — Julius Lisso and Madison Carroll, executors of Mrs. E. A. Carroll’s succession and the syndic of Lisso & Scheen, insolvents, who held the notes of Madison Carroll, Jr., purporting to be secured by-mortgage on the land in question, were made defendants in the suit— Cockerham alone answered; the others making default.

Besides the general issue, Cockerham specially denied the nullity of' the elation and judgment attached — averred that they were both founded on a just and valid consideration — further, that the property was sold at succession sale to pay the debts incurred by Mrs. E. A. Carroll subsequently to the death of her husband — that the said sales and the subsequent ones were valid and legal.

He further pleaded an estoppel against the plaintiffs, based upon the following alleged facts : He averred,that, after the probate sale of this property and its adjudication to Scheen, an account of the succession of Mrs. E. A. Carroll was filed by Lisso, executor, upon which was placed for distribution the amount of said adjudication. That this account was opposed by the plaintiffs, then minors, through their tutor, in which a ranking privilege was claimed on the proceeds of said sales. Further, that in the suit to enforce a mortgage against Madison Carroll, Jr., the alleged purchaser of this property from Scheen, these plaintiffs, through their tutor, had intervened in that suit-, in which intervention they set up the same claim to this land as in the present action, and urged that by these proceedings plaintiffs are now estopped from again prosecuting their demand.

He further averred, that he and his vendors were not parties to the suit in which the judgment of Mrs. Carroll against her husband was rendered, nor to the act conveying the property in controversy to the former, in satisfaction cf said judgment, and that ‘the said acts and proceedings being regular in form, he nor his vendors were bound to look beyond the decree of the court.

The plaintiffs are appellants from the judgment dismissing their action.

Two matters of inquiry demand our attention, since -upoD their solution mainly hinge all the other subjects of controversy embraced' in the case. The first is whether the elation en paiement assailed in point of fact, is subject to annullment or reduction as having infringed upon the legitime of the plaintiffs as forced heirs of their father : and next, if it did, was it made without a legal consideration.

To determine the amount of the legitime, the property alienated must be fictitiously brought back into Madison Carroll’s succession— collated, as it were, with the active mass, as forming part of same at the time of his death. The debts arc deducted and the disposable quantum is calculated on the balance, taking into consideration the number of heirs. C. C. 1504. Thus:

Amount of inventory, 1867 ...............................$ 6,721 68

Home plantation (returning) value......:................. 6,000 00

Total...............................................$12,721 68

Ck.

By succession debts...................................... 8,000 00

Net value...........................................$ 9,721 68

The disposable portion (one-third) is.......................$3,240 56

Amount disposed of in transfer of Home plantation, valued at. $6,000 00 From this deduct the disposable portion.................... 3,240 56

Amount of excess over disposable......................$2,759 44

Share of each heir therein, one-fifth..................... 551 28

Share of the two plaintiffs................................. 1,102 56

There is some dispute as to value of the Home place at the time of its transfer in 1866, and the testimony on this point is conflicting. The value given in the above statement is fairly deducible from the evidence, and is a medium between the highest and lowest estimates of its value found in the record.

From this statement it is to be seen that the disposition made of this property by the dation en paiement did encroach upon the legitime of the plaintiffs at least to the amount above set forth.

The next question for determination is whether or not the act or transfer was founded on a real and valid consideration. It purports, as before stated, to have been passed in satisfaction of a moneyed judgment obtained by Mrs. Carroll against her husband. The act recites this judgment as being for the sum of $2500, with legal interest from 1856, this judgment being rendered on January 25,1866, and the interest allowed thereby accruing during ten years before the filing of the, suit, and amounting to $1240. Of course interest could only run legally from the institution of the suit, since a husband could not be liable for interest on a debt owing the wife during the existence ot the community. The dation purports to have been made for the sum of $3740, which was the aggregate of the principal and interest of-the judgment, computed as above, and the property was appraised at this sum. Therefore, from the face of the act it appears that, at least to the extent of $1240, there was no consideration for the dation. The judgment which this dation purports to .satisfy must be viewed as a part of the act, or of the title passed thereby, and is next to be examined.

The proceedings [of the suit are before us. They do not contain the evidence adduced in support of the judgment rendered. The evidence was not reduced to writing. We note that the petition and answer, the waiving of citation by the defendant, and the judgment, are all in the handwriting of the plaintiffs’ attorneys therein. It is apparent on the face of the proceedings that the judgment was a consent judgment. It was attacked in the instant suit as being without consideration and void, and testimony was offered by the plaintiffs to strongly support these allegations, yet no evidence was offered by the defendants in rebuttal or with a view to show that the judgment was founded on a real or genuine consideration.

As to third parties or creditors, the production of this record only proved rcm ipsum. Landry vs. Fullen, 8 Ann. 100; Remey vs. Municipality, 8 Ann. 27; Erwin vs. Bank, 5 Ann. 3.

To sustain the judgment in view of the attack upon it, it was incumbent upon those interested to maintain it, to administer proof of its correctness and the reality of the consideration on which it was founded. Bogam vs. Finley, 19 Ann. 94; also 5 Ann. 135; 6 Ann. 46; 10 Ann. 87; 28 Ann. 546.

The judge a quo maintained the judgment, his reasons therefor being substantially: out of consideration for the character of the judge who signed the judgment and the presumption in favor of his judicial acts, and also on account of the good reputation of two witnesses then deceased, who were said to have testified in the case, and whose names as witnesses were indorsed on the petition, but whose testimony was not taken down as stated. The judge was in error, the consideration of the judgment should have been established aliunde, by proper proof, and, in the absence of such proof, we are forced to conclude that the judgment was without consideration and void.

This conclusion might seem sufficient to determine the case, in view of the declarations of the*Code, as[follows :

“ Immovable property that is brought into the succession through the effect of reduction, is brought] into it without cmy charge of debts or mortgages created by the donee. R. C. C. 1516.”

“ The action of redmction, or revindication, may be brought by the heirs against third persons holding the immovable property which has been alienated by the donee, in .the same manner and order that it may be brought against the donee himself, but after discussion of the property of the donee.” R. C. C. 1517.

The suit of Hadder vs. Shepherd, I L. 506, is stated in the language of the court, to be a suit against a third possessor by a forced heir for two undivided thirds of a plantation and slaves being the legitime, or portion of which the deceased eould not dispose.”

The plaintiff’s right of action in that case was distinctly recognized, though the court held that it was premature because the property of the donee had not been discussed, a question that does not arise in this case.

The claim of the defendant, to the property in question is founded on alienations made thereof and mortgages given thereon subsequently to the death of Madison Carroll, Sr., and its purported acquisition successively by Mrs. E. A. Carroll and her transferees; and such claims might seem to be fully met by the words of the case above quoted ; but, as these parties assert rights thereto protected, as they claimed, by their ignorance of any equities in favor of plaintiffs to the land, it is proper that we should investigate their pretensions.

Scheen, as stated, purports to have bought this property at probate sale, as belonging to the succession of Mrs. E. A. Carroll.

It is in proof that he paid nothing for the land. He and his partner, Julius Lisso, then composing the firm of Lisso & Scheen, held several judgments against Mrs. Carroll, and Lisso was the executor of her estate, and it was believed by them that Scheen could buy in the property and the amount bid therefor could be applied to the payment of the judgment and mortgages held by that firm against Mrs. Carroll’s succession; therefore the amount of the adjudication was not paid in by Scheen.

Besides, it is shown that there was an agreement before the sale, in writing, by which the property was to be bought in for the benefit of Lisso & Scheen, and that as Lisso, being the executor, could not purchase for himself or his firm, it was to be struck off to Scheen.

This agreement was plainly in contravention of a prohibitory law, touching the purchase by executors, and others in a like capacity, of succession property under their administration, and it is obvious that this sale, though thus disguised or planned to evade the law, was in direct contravention of it, and therefore void for this reason.

This case comes clearly within the spirit of the decisions of the Heirs of Wood vs. Nicholls, 33 Ann. 748; Chaffe vs. Farmer, 34 Ann. 1017; Stanborough vs. McClellan, 37 Ann. 275, rendered by the present court. Moreover, it appears that Scheen never went into possession of the property, but that it was occupied by Madison Carroll from the time of his mother’s death till a short time before the institution of this suit, when the defendant Cockerham took possession of it under ’ his purchase.

Shortly after the adjudication of this property to Scheen, he confessed a judgment in favor of one Cockerham, which was recorded, that it might operate as a judicial mortgage on this and other immovables of Scheen. After the death of Cockerham the executors of his estate transferred this judgment to his son, M. A. Cockerham, defendant herein, and he enforced the judicial mortgage resulting from its recordation against Madison Carroll, Jr., then in possession of the land, under a purchase from Scheen; and at the sheriff’s sale Cockerham bought it in in his own name.

This Cockerham was the son-in-law of Scheen, and it was shown on the trial that the alleged acquisition of this judgment by Cockerham and the purchase under it at sheriff’s sale was at the instance and for the benefit of Scheen, and that Cockerham was merely a person interposed, and has since the institution of this suit conveyed the property to L. E. Scheen, the son of J. II. Scheen.

What is confirmatory of this fact as well as the facts relating to the pretended purchase by Scheen and of other matters pertaining to all transactions of these parties recited above, is the circumstance that, though Scheen and Cockerham, the executors of Mrs. Carroll’s estate, Julius Lisso and Madison Carroll, Jr., and the syndic of Lisso & Scheen were all made parties to the suit, none of them appeared and answered save Cockerham; and what is still more significant, is that though the testimony, especially of Scheen and Cockerham might have thrown a blaze of light on these alleged damaging facts and irregularities charged in the petition, and with respect to which they were distinctly challenged as to the proof — the trial of the case was conspicuous for their silence on these matters, and their failure to go on the witness stand! They come clearly within the rule laid down in Atkins vs. King, 33 Ann. 1007; School Board vs. Trimble, Ib., 1072.

As before mentioned, it is charged, however, that plaintiffs are es-topped from asserting their claim and making these contentions in support of it, because of the opposition of their tutor to the account filed by Lisso, executor of Mrs. Carroll, wherein claim was set up to a privilege on the amount of the price purporting to have been paid by Scheen for the property at the probate sale, and because cf their intervention and its withdrawal in the suit to enforce the judicial mortgage by Cockerham under the judgment against Scheen,

It is questionable whether a minor, any more than a woman or others laboring under a like incapacity, can be subject to this rule of estoppel resulting from pleadings, admissions, or the like; but be that as it may, a knowledge of the real facts or of the true nature of the conditions pertaining to or involved in the question of estoppel on the part of one against whom the plea is directed, is essential to its maintenance. Watkins vs. Cawthorn, 33 Ann 1194.

In this instance we have the testimony of the tutor who filed the opposition, that when it was made he was not informed with respect to plaintiffs’ claim to the property, that he did not know that Scheen had paid no part of the price bid at probate sale for the Home plantation, but believed that there was an actual fund derived from this sale to be distributed, and did not know that this feature of the account was a mere fiction. ' If these minors could be estopped by any pleadings or averments that their tutor might be pleased to make in their behalf, certainly under the conditions named they could not be thus affected.

In the intervention mentioned, again through their tutor, they asserted their claim to the property in question as in this suit, accompanied by corresponding allegations to same extent. Their intervention was excepted to, and the tutor took a voluntary non-suit. Even had the plaintiffs been of age at the time and thus withdrew their suit before trial, they would not be precluded from again asserting by a sub- ■ sequent suit the .same claim.

There is, therefore, no estoppel on this last ground.

We have thus reviewed all the issues presented by the pleadings, and are satisfied that plaintiffs have made out their case. The only question still to be considered relates to the decree to -which they are entitled.

Art. 2446 of the Civil Code prohibits all contracts between husband and wife save in the three following cases:

1. When one of the spouses makes a transfer of property to the other who is judicially separated from him or her in payment of Lis or her rights.

2. When the transfer made by the husband to the .wife, though not separated, has a legitimate cause, as the replacing of her dotal or other effects alienated.

3. When the wife makes a transfer of property to the husband in payment of a sum promised to him as a dowry.

Outside of these exceptions, such contracts are void. Such is our conclusion respecting this contract in question — this act of dation en paiement entered into between Madison Carroll and his wife on the 7th September, 1866. It must, therefore, be annulled, at least to the extent that plaintiffs were prejudiced thereby, which is to the amount that it encroached upon their legitime in the succession of their father, and which amount appears from the statement heretofore submitted in this opinion. Had this disposition of the property mentioned been by a gratuitous donation, plaintiffs could not complain of it except in so far as it exceeded the disposable portion, so in this instance the nullity declared must be limited and measured by their interests, and they cannot legally demand that the act be annulled in toto.

The authorities cited by the plaintiffs’ counsel as favoring such extreme demand were cases where the wife, as part of the consideration of- the dation, assumed the payment of her husband’s debts, which she was legally forbidden to do, though we express no opinion as to the correctness of these decisions.

Besides the claim of the plaintiffs asserted to as upon the “Home plantation,” they claim also two-fifths interest in three other pieces or tracts of lands, known and designated respectively as the Coushatta bayou lands, the Coushatta town lots and the Child’s seventy acre tract

The Coushatta bayou land was sold by Madison Carroll, Sr., to one A. II. Stalhart for $4600, on which, before his death, he had obtained a judgment which appears in the inventory of his succession. This judgment was executed by Mrs. Carroll in 1869 by the seizure and sale of the plantation, on which a mortgage had been retained. At this sale she purchased said property for herself and in her own name, and the amounts of the several adjudications were credited as stated, she became the debtor of the succession for the same, and the heirs have no interest in the propeity, but their recourse is against their mother and tutrix, for the price.

The remaining tract — the Child’s seventy acre lots — was included in the dation made by Carroll to his wife, and as part of the Home plantation. It was never embraced in any of the subsequent sales, and the plaintiffs’ rights thereto cannot be extended beyond their claim heretofore recognized in the Home plantation on account of their legitime.

It is therefore ordered, adjudged and decreed that the judgment of the lower court so far as it rejects plaintiffs’ claim to the lands described in the petition as the Coushatta bayou plantation, the Coushatta town lands and the Child’s seventy acre tract be, and the same is hereby affirmed, and that in all other respects the judgment be annulled, avoided and reversed, and that the dation en paiement entered into between Madison Carroll and Mrs. E. A. Carroll on the 6th of September, 1866, be and the same is hereby annulled to the extent the same infringes on the legitime of the plaintiffs as forced heirs of Madison Carroll, deceased, which is hereby recognized, and the amount of the plaintiffs interest in the said excess over the disposable portion being the sum of $1102.56, and which sum, with legal interest from judicial demand is hereby recognized as a legal charge against the lands conveyed in said dation of the 6th September, 1866.

And it is further ordered, adjudged and decreed that the following acts and proceedings relating and purporting to affect the lands embraced in said dation of the 6th of September, 1866, and described in the petition be and the same are hereby declared null and void, viz :

1. The sale to J. H. Scheen (probate sale), of date the 17th of October, 1877.

2. The judicial mortgage of date the 1st of December, 1877, resulting from the recording of the judgment against J. II. Scheen in favor of John Cocberham, so far as it purports to operate on said land.

3. The sale by Scheen of said lands to Madison (jarroll, Jr., and the special mortgage given thereon by the latter of date March the 4th, 1878.

4. The sheriff’s sale to the defendant of 17th of February, 1873.

It is further ordered and decreed that defendants pay costs of both courts.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 9614.
    City of New Orleans vs. J. Mulé.
    Under Article 206 of the Constitution, the power granted “to levy a license tax” is discretionary and not mandatory. Tlie State or city may abstain from taxing, or may exempt irom license, any occupation or calling, subject to the restriction that, if a particular calling is taxed, the tax must conform to the constitutional rules.
    The contrary rule with regard to property taxation results from the provision of Article 203, that uall property shall be taxed according to its value,” and of Article 207, “the following property shall be exempt from taxation, and no other”

    There are no equivalent constitutional provisions relative to license taxation, requiring all occupations or all persons pursuing any occupation to be taxed, or declaring that no other than certain occupations shall be exempted.
    Hence, the city has the right to abstain from taxing, or to exempt, any particular calling or business, and, having by the terms of her ordinance expressly exempted the business of defendant, there is no legislative authority for collecting such tax, and the city’s demand must be rejected.
    A pPEAL from the First City Court of New Orleans. jLJl. Boeier, J.

      Walter H. Bogers, City Attorney, and Branch K. Miller, Assistant City Attorney, for Plaintiff and Appellee.

      B. JR. Forman for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

Our jurisdiction arises under that clause of Article 81 of the Constitution which extends it to “ all cases in which the constitutionality or legality of any tax, toll or impost * * * imposed by a municipal corporation shall be in contestation.”

The fifth section of the City Ordinance No. 1048, imposes a license tax upon “wholesale mercantile business,” and also upon “every business of selling at retail,” said license graduated in classes according to gross amount of annual sales.” The section, however, contains the following proviso:

“ Provided, that butchers, fish dealers, vegetable vendors and others occupying stalls or stands in any of the public markets belonging to the city are exempt from the operations of this ordinance, so far as the business carried on in the market is concerned.”

Although the city judicially admits that defendant is a “ butcher occupying a stall in a public market belonging to the city,” yet, in the teeth of the prohibition just quoted, she claims in this suit a license tax on that very business.

Amongst other defenses, defendant opposes this clause of the ordinance as a bar to the action, and we consider it conclusive.

The language of the clause establishes beyond controversy that the city has not imposed, or intended to impose, any license tax on the business pursued by defendant. Hence, there is no legislative authority for the collection of such a tax. State vs. Forman.

The terms of Article 206 of the Constitution leave no doubt that the power to “levy a license tax” conferred upon the.General Assembly, or the like power delegated by the latter to political corporations, is discretionary and not mandatory, and that the Assembly or corporation may validly abstain from imposing a license tax upon all callings or upon any particular calling, subject only to the restriction that if any particular calling is taxed, the tax must conform to the constitutional rule. Hence, any calling may be exempted from license taxation.

The contrary rule with regard to property taxation results from the language of Article 203, that “all property shall be taxed according to its value,” and of Article 207, “ the following property shall be exempt from taxation, and no other.” Hence, it follows that legislative exemptions of property from taxation are null and void, because violating the Constitution. Rut there are no equivalent constitutional provisions touching license taxation. The Constitution nowhere says that all occupations shall be taxed, nor does it say that no other than certain ones named shall he exempted. It contents itself with saying that “the General Assembly may levy a license tax,” and that “all persons, etc., may be rendered liable to such tax, except” certain persons and occupations named in Articles 206 and 207.

We, therefore, hold that the city has the right to exempt any calling from license and to abstain from taxing it, and that she has so exempted the defendant. Whether butchers, fish dealers, etc., pursuing their occupation elsewhere than in the irablic markets may resist the payment of any license which may be demanded from them under this ordinance, is a question not before us.

We content ourselves with saying that the legislative authority of the city has imposed no license tax on defendant, and, therefore, it cannot be recovered.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and that the demand of the city of New Orleans be rejected at her cost in both courts.


text:
    No. 9621.
    The State of Louisiana vs. M. Cendo.
    In a license suit, the clerical error of charging defendant with pursuing, without a license, “the business of vegetables ” in a public market of the city, instead of the business of dealing in or selling vegetables, will not be considered when first raised in this court, because no other “ business of vegetables” could be conducted in a public market except that of selling or dealing in them, aDd because, iu absence of any note of evidence, non constat that evidence received without objection might not have remedied the deficient allegations.
    Defendant’s contention that he was exempt under art. 206 of the Constitution because following “ an agricultural pursuit,” is not sustained by any evidence in the record showing that fact.

      Voorhies, J. PPEAL from the Second City Court of New Orleans.

      John McFnery and W■ B. Sommerville, for the State, Appellee.

      B. Jí. Forman, for Defendant and Appellant:
   The opinion of the Court was delivered by

Fenner, J.

This is a proceeding by rule under the State license law to recover a license of five dollars from the defendant.

The rule is prepared on a printed form used in such cases, with Blanks left to bq filled up in writing, according to the requirements of each particular case.

It happens here that, through evident carelessness and clerical error, the rule charges “that M. Cendo is conducting the business of vegetables in the Ninth Street Market without any license from the State of Louisiana, and that his gross annual receipts exceed the sum of one thousand dollars.”

There was no exception ou this ground in the court below, and the omission of the words selling or dealing in vegetables is too insignificant to he considered when urged for the first time in this court. What other business of vegetables except that of selling or dealing in them could he conducted iu an'public]market of the city, is not suggested, and, moreover, there appearing no note of evidence in the transcript before us, for aught that we know, evidence received without objection may have remedied the deficient allegation.

The only points raised in the court below as to the legality or constitutionality of the license, were that “ defendant is following an agricultural pursuit and is exempt from all license tax under art. 206 of the constitution, and because the license law of 1881 does not impose any license tax on this defendant.”

The license act of 1881 does impose a license upon “ every business of selling at retail,” and a vegetable dealer in the markets undoubtedly conducts such a business. It is equally clear that such business is not necessaaily an agricultural pursuit. Whether defendant was engaged in agriculture and in selling only vegetables raised by himself, is a matter of evidence which the record before us affords no means of solving, and whether such facts, if proved, would exempt him from the license claimed, is a question of law which we are not called upon' to decide.

We can discover no reason for disturbing the judgment.

Judgment affirmed.


text:
    No. 9622.
    The State of Louisiana vs. F. Buisseau.
    In .this, suit for license on the business of “ selling at retail, ” the defendant- is described as “conducting the business of butcher in the Hinth Street Market, whose receipts exceed $1000.” Objection to tliis-variance cannot ayail, in absence of any note of -evidence in , the transcript, because we Ifnow that butchers in public markets do sell meats at retail, and it may have been proved that defendant followed such a business.
    A butcher, in so far as he slaughters and dresses animals, may possibly be classed as a la"borer or mechanic., "but as such brandies of his business cannot lawfully bo pursued in the public markets of New Orleans, and aa w© have no note of the evidence received below, we cannot apply the exemption invoked under art. 206 of the Constitution.
    PPEAL from the Second City Court of New Orleans. VoorJdes, J.

      John McFnery and W. B. Bommerville for the State, Appellee.

      B. B. Forman for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

Defendant was sued for a license of five dollars under allegations that he “is conducting the business of butcher in the Ninth Street Market without any license, and that Ms gross receipts exceed $1000.”

He opposed the rule on three grounds :

1. That it disclosed no cause of action.

2. That the license law imposed no license upon a butcher.

3. That defendant is a laborer and follows a mechanical pursuit, and is exempt under art. 206 of the Constitution.

The law' imposes a license upon “ every business of selling at retail.” A person conducting tlie business of butcher in a public market, ordinarily sells meat at retail.

In absence of any noté of evidence found in the transcript, it may well be that testimony offered without objection, may bave satisfied the court that defendant was pursuing the very kind of business contemplated by the statute.

A butcher may be, in certain circumstances, a laborer or mechanic, in so far as he slaughters and, dresses the meat of animals, but as such business cannot be lawfully conducted in the public markets of New Orleans, and as butchers may and do conduct the business of selling meats in such markets, non constat that the evidence may not have established to the satisfaction of the court below that defendant was engaged in the latter business in such manner as to be liable for the license.

Judgment affirmed.


author: Manning, J. Watkins, J.

text:
    No. 9532.
    Succession of Eugénie Commagère.
    Where on appeal by an opponent it appears that he has not been heard at all hut was refused hearing on a stated ground, and a judgment dismissing his opposition- was entered, it is not necessary that the inventory and a mass of documents that have no relation to the issue presented by the appeal should be copied in the transcript, and a motion-to dismiss for the absence of these unnecessary and irrelevant documents will not be sustained if the pleadings, bills of exception, and other matter needful for a proper presentation of the issue to be decided, are in the transcript.
    After judgment has been rendered homologating an executor’s account so far as not oppcsed, other opponents cannot come in and attack the account. The delay fixed by law must have elapsed before an homologation can be made, and they who have permitted it to pass without preferring their complaints are shut out thereafter.
    But where an opposition contesting generally the whole account has been filed in time, this opponent may supplement her opposition by specifications and amplifications of the original after the homologation has been made. The judgment qualified by the words u so far as not opposed ” reserved her rights.
    An opponent-heir who alleges that she signed a receipt to the executor in full settlement in error, aud that the real estate of the succession has been bought by the executor through an interposed person, and so seeks to annul the sale and bring the property back into the succession, is not required to make tender of the sum she has received before she can be heard to impugn the settlement or attack the sale.
    A PPEAL from the Civil District Court for the Parish of Orleans. Lazarus, J.

      Jonas <& Nixon and G. Fernandez for the Executor, Appellee.
    JÍ. Voorhies for Opponents and Appellants:
    The spirit of our legislation is to lend every facility to examine into the conduct of administrators, and technical objections opposed to such investigation are entitled to little favor. 4 Ann. 123; 36 Ann. 416.
    A judgment homologating an account so far as not opposed will not bar a supplemental opposition, specifying the items opposed, when the first opposition, previous to judgment, opposed the items generally. 26 Ann. 610; 13 Ann. 113.
    A decree homologating an account so far as not opposed, without proof, is a nullity. 27 Ann. 667-
    Tender, or the putting m mora, is not a prerequisite to an opposition to the final account of an administrator. The doctrine, as set forth in the Civil Code, arts. 1012 [1906] et seq., applies exclusively to commutative cod tracts.
    "Where an administrator has purchased property belonging to the succession, sold on the petition of creditors, and employed the purchase price for the payment of its debts, he cannot claim previous tender of the price, but must recover rhe sum in dne comae of administration. 36 Ann. 235; 34 Aud. 1017.
    Even in a commutative contract, the rescission of which would require a liquidation between the parties, tender is not a prerequisite. 15 Ann. 518. A fortiori must this be the doctrine in settlement between heirs and an executor who holds a fiduciary trust.
    An opposition to a final tableau by an heir who has been cited oanuot be dismissed on a mere objection made, on the trial of the case, of want of tender, based upon a private anterior settlement, which is not before the court.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Manning, J.

The motion is based on the absence from the record of the inventory and other documents, and the failure of the appellant to have the transcript completed, and the fact that an unsigned judgment ot' May 6th, -which the mover says is the one appealed from, is not appealable.

No reference is made by page to the transcript to guide us in finding this unsigned judgment of May 6th, and we do not propose on a motion to dismiss to grope our way through the record to find it, and the more since there is a judgment of May 26th, signed and in its proper place, and that-judgment dismisses the opposition of Cheval tile appellant and continues the other opposition indefinitely.

The clerk certifies that he cannot find the inventory and other documents though diligent search has been made, but they are not needed for the purpose of this appeal. The mover seems not to apprehend the condition of the case.

No trial has been had on .the merits. The opponent was denied hearing at the outset. When she offered her first witness, the executor objected to any hearing whatever on the ground that he held the opponent’s receipt for a sum paid her in settlement of the claim which she was then renewing and pressing in her opposition, and that she could not bo heard until she tendered to the executor the sum thus received. The opponent having announced that she would not tender that or any other sum, the court sustained the objection and dismissed her opposition.

The issue to be tried by this appeal is presented in an assignment of errors and bills of exception, and is whether the opponent has a right to be heard and whether a tender was necessary, not whether her claim is just and well-founded. Sor far from the transcript not having- documents enough, it has far too many. The bulk of it is not needed for the trial of the issue now presented.

• The motion is denied.

On the Merits.

The executor of this sucession filed his final account in August 188+ which was opposed by Mrs. Cheval one of the heirs, and the account was then homologated so far as not opposed. About five months after-wards two other heirs filed oppositions, and these were stricken out on the motion of the executor, and these opponents reserved a bill and appealed.

The judge was right. After judgment of homologation has been entered neither heirs nor-creditors can be heard in opposing the account. The delay fixed by law must have passed before an homologation, can be .made, and. if parties affected by the account permit it to pass .without preferring their complaint, they must suffer for their own laches. A different rule would indefinitely protract the trial and homologation of a succession-account. Suc. Macarty, 3 Ann. 384.

Mrs. Cheval made a supplemental opposition about the time these other heirs filed their original oppositions, and the same objection is made to her supplemental opposition that was made to their originals, but it is not good.

She had filed an opposition in time contesting all the items of the account generally and she can afterwards supplement it by specifying more in detail the several grounds of her complaint. The judgment of homologation expressly excepted her opposition from its operation, and there is no reason why she should not afterwards amplify her objections to the account that had already been made. Suc. Cabrol, 26 Ann. 609.

On the trial the executor offered all his proof and when Mrs. Clieval began to offer or was about to offer hers, the executor objected to- the reception of it because she and he had had a settlement full and final and he had paid her one hundred and ninety dollars in discharge of whatever she was entitled to. His objection was that she could not be heard until she had tendered or paid him this sum thus received, and the judge sustained the objection and Mrs. Cheval appealed.

This ruling is error.

The executor seeks to apply a principle here that belongs to a wholly different state of things, and cites Pugh v. Cantey, 33 Ann. 786, where the court say, the party demanding the rescisión of a contract must return or offer to return the consideration received by him. * . * This is a condition precedent to being heard.”

There is no contract here to rescind. The allegation of the opponent is that her signature to the receipt -was given under protest and through compulsion and in complete ignorance of her rights. Whether true or false, the allegation of error entitles her to be heard in attacking the settlement.

Another allegation is. that the real estate of the succession was bought by an interposed person ostensibly but really by the executor, and one of the objects of the opposition is to have that sale annulled and the property brought back into the succession. We have more than once held that a tender was not necessary to enable an heir to begin such au attack. Stanbrough vs. McClellan, 36 Ann. 234, and cases there cited.

It is therefore ordered and decreed that the judgment of the lowbr court dismissing Mrs- Cheval’s opposition is avoided and reversed, and the cause is remanded for further proceedings therein, and in all other respects it is affirmed, the costs of Mrs. Cheval’s appeal to be paid by the executor.

On Application for Rehearing.

Watkins, J.

Mrs. Althée Tomlinson and Mrs. Elvina Vigné, heirs of deceased, opponents and appellants, pray the amendment of the former judgment and decree of tills court sustaining the judgment of the court a qua dismissing their oppositions.

They claim that, on the final account opposed, there are no funds' to be distributed to creditors; and they make no opposition to any creditor’s claim. They claim that the account purports to dispose of the entire assets of the succession, leaving in favor of the executor a balance of $1737.07; and that a final judgment of homologation “ would be tantamount to a judgment against the heirs, in favor of the executor, for said balance.”

This succession was opened by the death of the testatrix on the 15th of August, 1879, and during the same month letters testamentary were issued to the executor, Charles Louque.

On June 13th, 1884, opponents were recognized as heirs of the deceased.

The account opposed states the assets of the estate to be $5968, and its liabilities $7705.07, showing a balance in favor of the executor, as stated above, of $1737.07. '

Mrs. Cheval opposed this account iu full ” on the grounds that it was vague and indefinite, and did not set out the assets and liabilities fully; because therein no mention is made of the real estate belonging thereto, as described in the inventory; and because the property of the succession has been adjudicated to the executor, through a person interposed, and which still belongs to the succession.

She opposes specially several items, and particularly the balance in favor of the executor; and, generally, “ every item of said account as presented.”

On motion of the executor the account was thereafter duly homologated, so far as not opposed.

The account vims tried in the absence of counsel for opponent, Mrs. Cheval, and upon a proper showing, a new trial was ordered on November 28th, 1884.

No further proceedings were taken until the 25th of March, 1885, when Althée and Elvina Commagére filed additional oppositions to the. executor’s account, embracing, among others, many of the items of the account opposed previously by Mrs. Cheval.

On the same date Mrs. Cheval filed an amended opposition, in which she reiterates all of the objections previously urged to the account; and she further charges that all the moneys this account shows to have been disbursed by the executor, were by Mm derived from another succession to which she, and the other opponents are the sole heirs.

On motion of the executor the opposition of Mrs. Tomlinson and Mrs. Vigné are stricken from the docket “as having been filed too late,” i. e., subsequent to the judgment of the court homologating the account, so far as not opposed ; and to this ruling opponents reserved a bill.

Were the oppositions presented in due season to entitle those opponents to a hearing thereon 9

Should the opinion of this court be reversed in such way as to afford them an opportunity of maMng proof of same 9

In succession of Cabrol, 26 Ann. 609, the court say: “ On the 4th of August there was judgment homologating all the items not opposed.

“As the original petition opposed, in general terms, the homologation of all the items of the account except the law charges and costs, it follows that only these items were homologated by the judgment.

“ The supplemental petition of the 9th of August supplies, so far as the items therein specified, the deficiency complained of in the original petition of opposition.

“ Our conclusion is that the court erred in dismissing the opposition.”

In the succession of Michael Schaffer, 13 Ann. 113, the court say: “ It may be conceded that an unqualified homologation, after due advertisement and delays, of a curator’s account, and statement of debts, is binding upon the heirs, in the absence of fraud.

“ But here it appears that the items in controversy have not been passed upon. The account was homologated only in so far as not opposed.’

“ The oppositions of Michel and Gilmore attacked the items now in questions.

“ Those items having been opposed, are not covered by the terms of the decree.”

Counsel for the executor places reliance on the doctrine that is announced in succession of Macarty, 3 Ann. 383, and the quotation it makes from Lang et al. vs. Their Creditors, 14 La. 237, which is that:

“ The law fixes the delay within which opposition to a tableau of distribution is to be made. This delay is not, however, fatal, as long as proceedings are suspended; but when judgment of homologation is pronounced, creditors who deem themselves injured by it cannot be relieved otherwise than by a new trial; and this cannot be obtained by a party who has neglected to file his opposition until the judgmcn i of homologation he pronounced.”

In the case at bar the proceedings have been kept suspended by the opposition of Mrs. Cheval. On the same day that she filed her supplemental opposition, the original oppositions of present appellants were filed, upon almost the identical grounds thereof.

The judgment homologating the executor’s account so far as not opposed did not pronounce upon the items of the account that are embraced in, and covered by Mrs. Cheval’s oppositions, original and amended.

There is no conflict between these decisions. On the other hand, they are perfectly harmonious.

The right to do what is ordered to be done within a given time exists so long as no action of the court, or the opposite party, has intervened to conclude that right. * •* So, too, opposition may he made to an account of administration at any time before its homologation.

There are many cases, however, when this rule ceases iu consequence of special provisions of law.”

Hen. Dig., p. 1580, No. 11, and authorities cited therein.

We have no hesitancy in saying that the opponents are entitled to a hearing upon their oppositions as filed; but we express no opinion upon various questions argued by counsel, appertaining to the trial of the same on the merits.

It is therefore ordered, adjudged and decreed, that the former opinion of this court herein rendered, he and the same is hereby amended in so far as to reverse the judgment of the lower court striking said oppositions as having been filed too late; and it is further ordered, adjudged and decreed that said oppositions are reinstated for trial and further proceedings according to law, and that the executor he taxed with the costs of appeal.

Judgment amended.


author: Todd, J. Watkins, J. Poché, J.

text:
    No. 9569.
    Mrs. Annie Huyghe vs. Henry Brinkman.
    Where a motion to dismiss the appeal is made on the ground of the deficiency of the transcript as shown by the clerk’s certificate, and the transcript is completed and the missing evidence supplied, and the certificate converted under a certiorari from this court before the case is submitted, and no delay is occasioned by the steps taken for the completion of the transcript, the appeal will not be dismissed.
    When in a possessory action the parties urge claims and counter claims which necessarily involve the question of title, and are clear incidents of ownership, an issue which can. not be tried in such an action, the parties will be relegated to the petitory action as a necessary gtep to a proper adjudication of such claims.
    Courts cannot be required to decide controversies by piece-meals — a decision of the fundamental question must precede a diccnssion of rights incident thereto.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Alfred Goldfhwaite for Plaintiff and Appellant.

      Bayne & Denegre and Braughn, Buelc, DinTcelspiel <& Bart for Defendant and Appellee.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Todd, J.

This motion is grounded on the deficiency of the transcript through the alleged fault of the appellant.

Before the case was submitted, the documents alleged to be missing were supplied under a writ of certiorari from this court. Furthermore the defective certificate of the clerk accompanying the transcript when filed, was supplemented and corrected* and this new certificate showing a full and complete transcript was by the permission of the court filed on the motion of the appellant.

Finding, then, a perfect transcript before us, containing all the evidence, documents and proceedings had in the lower court, and no delay having been caused by these efforts of the appellant to complete the transcript, we see no reason whatever to dismiss the appeal.

The motion to dismiss is, therefore, denied.

On the Merits.

Watkins, J.

This is a possessory action instituted by plaintiff for the recovery of an improved lot on First street in this city, coupled with a claim for rents and revenues, to which was urged a general denial and a special defense by the defendant to the effect that he liad, through himself and his vendors, held peaceable and undisturbed possession of said property for fully ten years prior to any claim set up by the plaintiff * * ® and he alleges that, as possessor in good faith, he is entitled to all rents and revenues of said property •, or if condemned to pay such revenues he is entitled, as possessor in good faith, to be reimbursed the taxes and expenses incurred for said property.”

Suit was filed on October 22, 1879, and petitioner alleges the disturbance of her possession on the 2d of November, 1878, and she demanded rents at the rate of $40 per month from that date with interest.

This Court decided that the plaintiff was entitled to recover the possession of the property and rents at $30 per month since the 2d of November, 1878, with interest, and that the case be remanded to receive proof of the cost of taxes and whatever else he can properly plead in offset of the plaintiff’s demands.” This court further said: We do not determine the question of his possession in good faith, but it is fair that he should have an opportunity to show it.”

In the court below the plaintiff filed a plea in which she elects and requires the demolition of the constructions and works made by defendant on the premises sued for.

Prom a judgment in favor of the defendant for $1900, with interest, the plaintiff appealed.

The record discloses that defendant purchased the property in controversy at a partition sale between the heirs of Robert Huyghe, former husband of plaintiff, who continued in possession after his death.

The partition proceedings were duly homologated, notwithstanding plaintiff’s opposition thereto.

Defendant purchased, at public auction, on June 1, 1878, and on the 17th of that month, a formal title was executed therefor by Octave Morel, notary.

He then procured a writ of ejectment and dispossessed the plaintiff; and she sued him for damages resulting therefrom. 34 Ann. 832, 1179.

The title of defendant is perfect in form, and recites all the necessary elements of a sale; and he paid a large part of the price of the adjudication. It is notarial in form, and three of the heirs of the deceased signed it. It possesses all the insignia of a joint title in the sense of R. C. C. 3484 et seq.

The plaintiff was a party to the partition proceedings, and some of the heirs were of full age and seem to have acquiesced therein. The inventory of succession of Robert Huyghe taken on the 3d of March, 1877, was valued at $15,770.44.

Conceding, for the argument, that the Second District Court had no jurisdiction ratione material to order a partition of succession property ; it had jurisdiction of the succession itself. If such a sale be a nullity, it is a relative one only.

One who has just reason to believe himself master of the thing which he possesses, is a possessor in good faith. R. C C. 3451.

He is a possessor in bad faith who assumes that quality well knowing that he has no title to the thing, or that his title is vicious and defective. R. C. C. 3452.

In no one of the various suits and proceedings pro and eon. has this title been tested or put at issue. Brinkman has, to all appearances, full confidence in Ms title, and Ms testimony supports that-belief.

The doctrine announced in Walworth vs. Stephenson, 24 Ann. 251, to the effect that “a purchaser under a judicial sale is in bad faith, and liable, for rents and damages, if the judgment under which he purchases is absolutely void,” etc., has not been followed by this Court. Hickman vs. Dawson, 35 Ann. 1036; Eldridge vs. Tibbits, 5 Ann. 380; Carroll vs. Cabaret, 7 O. S. 406; Frique vs. Hopkins, 4 O. S. 224; Dufour vs. Camfranc, 11 O. S. 715; Roberts vs. Brown, 14 Ann. 985; Giddens vs. Mobley, 37 Ann. 417.

In the' briefs of counsel in the last case Walworth vs. Stephenson was pressed upon this Court’s attention without avail.

In those cases pleas of prescription and demands for reimbursement for improvements made and taxes paid, were urged. Their allowance depended upon the proof disclosing the possession of defendants in good faith.

In Hickman vs. Dawson, a large sum was allowed for improvements, and in Giddens vs. Mobley, the plea of ten years’ prescription was sustained, notwithstanding this Court, in the former case, held the title absolutely null and void.

We conclude that defendant was a good faith possessor at the commencement of his possession, and that good faith has necessarily continued. 9 Ann. 171, State vs. Smith; 14 Ann. 605, Robert vs. Brown; 33 Ann. 441, Hickman vs. Dawson; 34 Ann. 705, Wederstrandt vs. Fuyher; R. C. C. 3482.

Plaintiff places reliance on R. C. C. 503, as supporting the plaintiff’s theory of defendant’s possession in bad faith since suit.

It reads as follows, viz: “He is a bona fide possessor, who possesses as owner, by virtue of an act sufficient in terms to transfer property, the defects of which he was ignorant of.

“ He ceases to be a bona fide' possessor from the moment these defects are made known to Mm, or are declared to him by suit instituted for the recovery of the thing by the owner."

We understand that to mean a petitory action, or an action in nullity of the possessor’s title.

A possessory action cannot accomplish that result.

In Kibbe vs. Campbell, 34 Ann. 1163, this Court held correctly that, after the good faith possessor has been dispossessed by one holding a better title than himself, the former has a right of action for compensation for improvements and taxes which enured to the benefit of the soil, or enhanced its value.

We are of the opinion that under the express provisions of R. C. C. 508; plaintiff was not in the attitude to compel defendant to demolish, or remove the buildings constructed on the property in dispute, because defendant was not a bad faith possessor.

It reads : Nevertheless, if the plantations, edifices and works have been made by a third person evicted, but not sentenced to make restitution of the fruits, because such persons possessed bona fide; the owner shall not have a right to demand the demolition of the works, plantation, or edifices, but he shall have the choice either to reimburse the value of the materials and the price of workanship, or to reimburse a sum equal to the enhanced value of the soil.”

This election plaintiff has not made. There has been no proof administered as to the enhanced value given the soil by reason of the improvements, for which reimbursement is claimed; but there has with regard to the value of the materials and the price of workmanship, and we shall predicate our opinion upon it, as it may be fairly assumed that plaintiff was content with the election the defendant had made.

The defendant claims for improvements and to reimbursement for the same; for removal of old stables, building material for and repairing the roof of the house, etc., $188.28; for painting, material and labor employed in the construction of a new stable, $270 ; carpenter’s work, brick, mortar, lumber, painting and hardware, $960.90; and other items aggregating $210.

He also claims for State and city taxes paid during seven years, a little over $400, and other small items, aggregating $405.02- — $2374.20.

There are introduced in evidence by defendant a statement of his tax assessments from 1878 to 1884, and sundry receipts from carpenters, journeymen, lumber-dealers and dealers in paints, oils, glass, etc.; receipts for insurance premiums, for taxes paid, etc., and for and during the years 1880 to 1885 inclusive.

The defendant, as a witness, states that he paid a large part of the purchase price, the taxes, repairs and cost of improvements, during the time he occupied the property as owner, and the insurance premiums since 1878.

He says that when he went into the house it was dirty and in need • of repairs, and that lie had it thoroughly repaired and cleansed, painted and calsomined. ¡

He says that the roof was bad, the keys lost, and window panes broken, and an entirely new fence was necessary) and same was built. He states that he paid the various bills that were introduced in evidence, and had the repairs made that are charged for.

His statements are in great part supported by the evidence of Otto Knows, H. Hillevig and J. Barney, but' they are opposed in part by plaintiff, who says, that the house on the preinises was comparatively new, and was in need of no repairs, but she did not know what improvements he had made.

Her statement is~supported by Fred. Wing, in a general way, and by Wm. Seymour ; but their testimony has no significant bearing on the case.

In the well-considered opinion oi the district judge he says':

“In view of the judgment against defendant for rent at $30 per month since November, 1878, it is fair that he should be allowed, in compensation, all that he has expended for the preservation and improvement of the property.” In this view we concur.

The evidence of the defendant is not as clear and satisfactory as it should be, in some particulars, and for some items charged for.

The aggregate amount of his claim is $2,450.97, and same was by the district judge reduced to $1900, which, he “ thinks, will fairly reimburse all expenditures properly chargeable to plaintiff,” which sum was held to offset and compensate pro tanto, the judgment in plaintiff’s favor for rent.

A careful examination of the record fully satisfies us of the correctness of the judgment of the district court, and it is therefore affirmed with cost.

On Rehbaring.

Poché, J.

A careful consideration of the consequences which might flow from our last decree in this very complicated litigation has decided us to retrace our steps, and to make an effort to bring the parties into line so as to open the way to a logical solution of the many difficulties which the record, in its present shape, forces on the judicial mind.

In our previous opinions in some of the branches of this controversy we have more than once intimated that the vital question involved in it, namely, the question of title or ownership, had not been presented in any of the pleadings. And yet, in the present case, we are called on to adjudicate on important questions which are necessary incidents of the ownership of the property, or, in other words, to treat and dispose of effects before considering the essential causes of the same.

Thus we are expected to attach effects to the alleged good faith oí the defendant’s possession as a test of his right to recover his taxes, and ocher expenses in repairing and preserving the property, in anticipation of an eventually possible judgment which may decree him to have been all along the true and lawful owner of the property.

In our opinion in the case between the same parties, in 37 Ann. 240, we settled the character of this suit to be the possessory action. We allowed rents to the plaintiff possessor for the time that she was and remained ejected, and remanded the cause for trial of the defendant’s claim for reimbursement of his taxes and for the valué of his improvements.

Now, in the present appeal, and especially on this rehearing, the argument of counsel is almost exclusively directed to the validity of Brinkman’s alleged title. In point of fact, the good faith of his possession is intimately blended and inseparably connected with the validity of the partition sale, at which he became adjudicated of the property.

As argued by counsel, if the court ordering the sale had jurisdiction, a question which he was bound in law to examine, his possession is in good faith, but to reach that conclusion it is inevitably necessary to hold at the same time that his alleged title is good, and vice versa.

Hence, we have to confront this state of things — the question of ownership, which is not presented in the pleadings, is at the threshold of the discussion of the defendant’s alleged possession in good faith— and a correct solution of the latter must in law and in logic be preceded by a decision of the former.

We therefore conclude that the right of defendant to recover his taxes and other expenditures, depending on his good faith, cannot be adjudicated at the present stage of the litigation, and that it must of necessity and in justice be relegated to the trial of the question of title or ownership, as soon as the parties make up their minds to present that issue under proper pleadings.

In a petitory action, and in such action alone, all the vexed questions which bristle in this controversy, can be properly discussed and logically and legally disposed of.

A judgment in such an action will take up the whole series of adverse claims, of title, of rents and revenues, and the incident right of compensation for alleged necessary disbursements. Courts cannot be required to entertain controversies by morsels or piece-meals as the caprices of parties may dictate.

The fundamental question must underlie the discussion of legal incidents and consequences naturally flowing therefrom.

It is therefore ordered, that our previous decree heroin, rendered on the 17th of May last past, 1886, be annulled and set aside. It is now ordered, adjudged and decreed that the judgment appealed from, allowing to defendant, Brinkman, the sum of $1900, on account of taxes paid and improvements made by him on the property in suit, be annulled, avoided and reversed, at the costs of defendant in both courts, under the reservation of defendant’s right to claim the amounts set up by him in this litigation, in a future proper proceeding, his right to ultimately recover the costs, which he is herein condemned to pay, in ease of a final decision in his favor either on the question of title or in the recovery of his claim aforesaid — and all other claims growing out of the question of his alleged ownership.

On Petition for Modification of Decree.

Defendant prays that our last decree in this case be modified so as to restrict the execution of the judgment previously rendered in favor of plaintiff for rents, to any excess of such judgment over the sum of $1900, for which defendant had obtained judgment in the lower court, which judgment we have just reversed.

The relief prayed for is equivalent to an order partially suspending the execution of a final judgment rendered by this Court since March of last past, more than eighteen months ago.

It is apparent that the judgment which is the property of plaintiff, is absolutely beyond our control, and that we are powerless to grant the relief which defendant asks in this pro seeding.

It is therefore ordered, that' the petition of defendant be dismissed, and that the relief which he prays for be denied.


author: Poché,- J.

text:
    No. 9764.
    The State of Louisiana vs. Goodrich Cole et al.
    i. Under the Constitution and laws of this State, district attorneys are vested with full discretion, not under the control of courts, to prosecute offenses not capital either by indictment or by information, as in their judgment the interest of the State or the ends of justice may require — and the discretion thus vested in them cannot be affected by the fact that the grand jury may be in session at the same time and in the same parish.
    2. In criminal eases the order to separate witnesses is not one of right, and its modification by the judge within reasonable grounds must be left to his discretion. Hence, the ruling of a trial judge in rejecting the testimony of a party who had obtained admission in a court room, on declaring that he was not a witness, and who was thereafter tendered as a witness by the accused, will nob be disturbed on appeal. Ho fixed rule can be adopted in such matters. Judges must be guided by the peculiar circumstances surrounding the offer of such testimony.

      3. This- Court will not interfere witli the orders made by trial judges concerning the discipline of their courts. Hence, a complaint that a judge called a particular case out of its oi'der as fixed on the trial docket, will not he entertained on appeal. Parties should consider that the district judges in this State are not mere ministerial officers, or much less children, whose every step must be traced and controlled by superior authority, but that their courts have certain inherent powers.
    4. After charging the jury, as the Constitution requires, that they are the judges of the law and of* the facts in criminal cases, it is proper that the judge should instruct them, to the effect that they are the sole judges of the facts, but that, as regards the law of the case, they should be governed by the charge of the judge thereon. Affirming State vs. Ford, 37 Ann, 465; State vs. Yinson, 37 Ann. 792; State vs. Hal Matthews, recently decided at Shreveport.
    APPEAL from the Ninth District Court, Parish of Tensas. Young, J.

      M. J. Cunningham, Attorney General, and Hugh Tullís, District Attorney, for the State, Appellee:
    1.Where witnesses are sequestered by order of court, and the order is disobeyed by one of the witnesses who had been warned by the sheriff not to come into court, and who was fully cognizant of the order, it is discretionary with the court a qua to exclude the disobedient witness’s testimony, particularly when it does not appear that his evidence was material to the prisoner’s defense. 36 Ann. 149; 34 Ann. 383; 15 Ann. 79; Arch- • bold’s Crim. Plead, and Ptac,, Pomeroy’s notes, Yol. 1, p. 539; Bishop Grim. Pro. Yol. 1, §§ 1192,1088.
    2.The appellate court will not interfere with the discretion of the lower court in matters pertaining to the separation of witnesses. 27 Ga. 287; Bishop Cr. Pro. Yol. 1, §§ 1086, 1087, 1088; 34 Ann. 383.
    3.Prosecutions maybe by indictment or information. 14 Ann. 367; 33 Ann. 1223; Const, art. 5; E, S. 977.

      JSlam & Luce for Defendants and Appellants.
   The opinion of the Court was delivered by

Poché,- J.

In support of their appeal from a sentence of six years to hard labor, under a conviction of robbery, the defendants, three in number, rely on six bills of exception.

1st. In a motion to quash the information, they denied the legal power or authority of the District Attorney, to proceed by information when the grand jury is actually in session, and they contend that under such circumstances an indictment would have been the exclusive mode of proceeding under the offense charged against them.

The argument is not sound; it is effectively answered by the very text of the constitution and laws of the State on the subject-matter.

Article 5 of the Constitution reads : Prosecutions shall be by indictment or information; provided that no person shall be held to answer for a capital crime, unless on a presentment or indictment by a grand jury.” * * *

Containing a pre-existing similar provision, Sec. 977 of the Revised Statutes of 1870, is in the following language: “ Prosecutions for. offenses not capital may be by information, with the consent of the court first obtained.”

It has been judicially determined that, except in extreme cases, not likely to occur, the judge cannot withhold his consent to that mode of prosecution of offenses not capital. State ex rel. State vs. Judge, 33 Ann. 1223.

We understand, and we therefore hold, that in proper cases, the District Attorney is clearly vested with the discretion, not subject to the control of courts, to proceed by information in the prosecution of offenses not capital, and that his discretion in such matters is not affected by the fact that the grand jury may be in session for the same parish and at the same time.

2d! They next complain of the refusal of the judge to allow a certain party to testify in their behalf. The refusal was made , on the objection of the District Attorney under the following circumstances : The judge had made an order to separate all the witnesses in the case, and one Riley, whom the sheriff attempted to exclude from the trial on the ground that he was a witness in the case, had answered the officer that he was not, whereupon he had been admitted in the courtroom, where he had been for an hour, when defendants’ counsel offered his testimony, with the view of proving an alibi. The judge, knowing that he was the father-in-law of two of the defendants, rejected his testimony. Under these circumstances we are not prepared to rule that the- judge abused the discretion which is vested in him by the law touching this subject-matter. An interference with his discretion in such rulings would open the door to practices which would entirely defeat the very object to be attained by the order sequestering the witnesses in any and all cases. State vs. Ford, 37 Ann. 463; State vs. Rivells, 34 Ann. 383; State vs. Gore, 15 Ann. 79.

'3d. Their next two bills are levelled at the ruling of the judge in allowing questions to witnesses to show that, on the day the robbery was 'committed, one of the defendants was seen in the act of putting certain goods in a-sack. Their counsel contend that the defendants had been charged with the robbery of money alone, and .that- it- was therefore irrelevant to prove anything connecting them with the robbery of goods; and, further,, that the party charged to have been robbed had testified that no one was present except himself and the defendants themselves. Their main argument is that the robbery was charged to have occurred at 1 o’clock, and that the testimony admitted went to show that the goods were seen in the possession of the accused two hours before, which was impossible. This very argument affords a correct solution of the objection ; clearly it went to the effect and not to the admissibility of the proffered testimony. The bill shows-that the party robbed was a peddler, whose bundle of goods had been ransacked, while the robbery of his money was being perpetrated.

The testimony was intended as corroborative evidence. Whether it was so or not, truthful or not, possible or not, were questions for discussion before the jury. Hence the objection could not be sustained in law.

4th. Defendants’ counsel find fault with the judge’s charge to the jury in so far as he told them that they were the judges of the facts and of the law in the case ; that they were the sole judges of the facts, and that, as regards the law, they should be governed by the charge of the judge thereon.

The instructions substantially comply with the rules established in our jurisprudence. Counsel can find no support for their contention, in our opinion, in Vinson’s case, 37 Ann. 792, on which they rely exclusively. In that case we said : The relation which the jury bears to enunciations of law delivered to them by the judge, is very similar to that which the judge bears to valid and unambiguous statutes. The judge is bound, under his oath, to accept and apply the statutes, but that does not prevent him from being the judge of the law. So the jury is bound to accept and apply the law as declared by the court, but that does not prevent their being judges of the law.”

In Ford’s case, 37 Ann. 465, this Court sustained the judge who had instructed the jury that while they were the judges of the law as well as of the facts, it was their sworn duty to follow the law as given to them by the court. In that connection the court said: The best judicial authority is that the declaration to the jury that they are the judges of the law and of the facts must be followed by an explanation similar to that contained in the charge now under consideration.” The same views were expressed by this Court in the recent case of the State vs. Hal-Mathews, decided at Shreveport, and not yet reported.

We must, and we shall, adhere to a rule-which finds its sanction in logic and reason, as well as in law and jurisprudence, and which affords even-handed justice aud equal protection to society as well as to individuals.

We entertaiu a reasonable hope that it will henceforth be accepted as the settled doctrine of our jurisprudence on the question of the powers of juries in criminal cases.

5th. Defendants finally complain that their ease was called out of its fixed order on the trial docket. It appears from the bill that at the end of the jury week the judge ordered that cases in which the defendants were in actual custody should be advanced over those in which the parties were out on bond. The order finds ample commendation in the feeling of humanity which prompted it, as a boon to those who are now loudest in its condemnation. And we shall certainly not disturb such an order in the very case which illustrates its wisdom. The verdict of the jury affords the only rational explanation of the marked aversion of these defendants to a trial which came earlier than their wishes.

Surely, counsel cannot he serious in trying to induce an appellate tribunal to interfere with trial judges in the administration of the discipline and order of business in their own courts. They must understand that district judges are not mere ministerial officers, or much less children, whose every step must he traced and controlled by superior authority. The order complained of was manifestly within the limits of the judge’s legal discretion. State vs. Duck, 35 Ann 764; State vs. Ford, 37 Ann. 459.

We find no error to the prejndice of the accused during the whole course of their trial.

Judgment affirmed.


author: Bermudez, C. J.

text:
    No. 9644.
    Edward G. Schlieder vs. L. B. Martinez—J. Rexach et al., Intervenors.
    An appeal lies from a judgment dismissing interventions, tlie object of which is to claim the ownership of the effects seized and to subject them to money claims, where the property, which is the matter in dispute, is shown to be worth more than two thousand dollars.
    Parties deeming themselves aggrieved by a judgment may, when appealing therefrom, join in one motion and furnish one bond.
    The motion and the bond should be filed in the proceeding in which the judgment appealed from was rendered. It would be irregular to offer them in a different proceeding, though the interventions were filed therein.
    A bond in favor of “the clerk of the court,” satisfies the law. The name of that official is utterly insignificant.
    Plaintifis seized certain movables as the property of their debtor. A third person inter* vened claiming title and possession under transfer before sale and asked for judgment decreeing him to be the owner. Plaintiff answered alleging his title to be in fraud of , .. creditors and simulated. Before trial, intervenor moved to strike out all the allegations except those showing simulation and to restrict the issue to simulation vel non, The case was so tried.

      Held, that after thus accepting and submitting this issue to the decision of the court, intervenor cannot now dispute plaintiff’s right to raise this issue otherwise than by ' a direct action in declaration of simulation, even if otherwise the objection was tenable as to alleged simulation of sales of movables, on which it is unnecessary to express an opinion.
    In such a proceeding the allegation that the sale attacked embraces all the property of tbo debtor, is a sufficient allegation of injury to the creditor.
    On the facts of the case, the evidence sustains the conclusions of the judge.
    APPEAL from the Civil District Court for the Parish of Orleans. Houston, J. '

      A. J. Lewis and Hornor <& Lee for Plaintiffs and Appellees:
    The separation of witnesses is subject to the discretion of the trial judge, who may order the defendant to withdraw, when the case has been closed as to him, and when ho is to be a witness as to the issues between plaintiff and the intervenors, particularly when the defendant makes no objection, which is urged solely by counsel for the intervenors. State vs. Harrison, 38 Ann.
    The ruling of the lower judge at the outset and before testimony is heard that the action is en declaration da sirtwlation, establishes definitely and finally the nature of the cause. Third parties may prove simulation by presumptions, by circumstances out of the usual ' • course of business, by the acts of the parties, their intimacy and close and long connection in business and as partners. 11 L. 269 ; 13 Ann, 207; 10 Ann. 29; 30 Ann. 359.
    A notarial act of sale omnium bonorum between sucb persons is a presumption of simulation whore the vendor is insolvent. Mackesyvs. Schultz et al,38 Ann.; 2 Ann. 267. It is not necessary to treat such instrument as a reality, and it may he shown to'be itself a mere sham and conspiracy to defraud creditors. 7 Ann. 614; 15 Ann. 177, 553; 31 Ann. 962,- Johnson vs. Kingsland & Ferguson Mftg- Co., 38 Ann.
    Such presumption of simulation arises the more readily where the alleged vendor is shown to have resorted to such methods previously. 12 Ann. 666; 29 Ann. 4 , 36 Ann. 684; 37 Ann. 795,165; Collins vs. Harper, Ho. 5747, H. K.
    The ownership asserted by Lloverás of Hey "West cigars worth $198, and of a mirror worth $50, although urged herein by way of intervention and third opposition is really a separate demand. C. P. 398; 10 L. 518. This Court has no power to review the judgment dismissing that demand. Const. 1879, art. 81; 26 Ann. 591; 32 Ann. 603, 1120; 33 Ann. '1055; 37 Ann. 541.
    .Besides, there had been no delivery to Lloverás and the mirror was in the possession of Martinez when seized. C. C. 2247, (2243); 37 Ann, 472.
    A sale being proved simulated, notes used to represent part of the pretended price are void. Third persons who participated in the confection of such sale, or who were fully cognizant thereof, or who had every opportunity of informing themselves of the truth, are not innocent holders in good faith. There beiug no sale, there can be no vendor’s privilege, and thóre can be no conoursus. 30 Ann. 625; 34 Ann. 821; 33 Aim. 1055; 32 Ann. 603, 1120.

      F. L>. Olvrétien, F. Sabourin and Albert YoorMes for Defendants and Appellants.
   On Motion to Dismiss.

Tlie opinion of the Court was deliYered by

Bermudez, C. J.

On a claim of some $800, the plaintiff sequestered and attached, as belonging to the defendant, the contents of a cigar store.

Rexach, Estera & Lloverás intervened, the former claiming the ownership of the property seized, the other two seeking each payment of a sum less than two thousand dollars, with lien and privilege.

After trial, there-was judgment for plaintiff, but dismissing the inter-* ventions.

The intervenors appeal.

The plaintiff asks that the appeal be dismissed:

1st.’ Becaiise this Court is without jurisdiction rations materia, the-amount in dispute being less than $2000;

2d. Because of irregularities in the motions and bonds of appeal;

3d. Because the transcript was filed too late.

I.

-Rexach claims to -be the owner of the property, seized.

Estera & Lloverás sue for separate amount's, which aggregate $1438.

It is apparent that the only judgment which can be rendered is one touching the ownership of the property seized and its liability and.subjection to the money claims which are said to be secured by lien thereon.

The pi'operty seized is the matter in dispute and, as it is shown to be worth more than $2000, this Court has jurisdiction.

II.

The objection to the motion of appeal and to the bond that they bear the title of the consolidated cases in which the judgment was rendered; that the bond is payable to John Clark, clerk of the Civil District Court, when the clerk thereof at the time was W. J. McG-eehan, has no force.

The judgment appealed from was rendered in the consolidated cases, among which the suit of Schleider. It was not only not irregular, but proper, that the motion and the bond should be made in those cases. It .would not do to file them in a case in which the judgment was not rendered.

There is no provision of law-or rule of practice.which requires that eaph party dissatisfied with the judgment rendered should separately, appeal and give a distinct and separate bond. They can all well join in the same motion and furnish one bond, in the case in which the judgment appealed from was rendered. ■

The bond contains the name of McG-eehan and not that of Clark. Even if it did, it would be a clerical error. It is sufficient that it be made payable to the clerk of the court. His name is a matter of utter insignificance in such an instrument.

III.

The transcript was filed within the thirty days allowed in extension of the return day; therefore, m time.

It is therefore ordered that the motion to dismiss be overruled.