author: Nigholls, C. J.

text:
    No. 13,707.
    Succession of Adolph C. Loeper.
    Syllabus.
    1. A creditor holding under an act importing confession of judgment a special mortgage with the clause de non alienando has the right to enforce his mortgage by executory process, though the debtor be dead and his succession be under administration. The creditor has the right to have an order which the administratrix has obtained for a probate sale of the property mortgaged, set aside, though it had been granted prior in date to an order of seizure and sale which he, himself, had obtained, unless he has lost that right by laches or has estopped himself by his acts: mere priority of dates of the orders is not determinative which of the two shall prevail, but the special facts of each case control the situation.
    2. The mortgage creditor is not estopped from enforcing his mortgage by executory process by having consented to a probate sale and bidding at an offering of the property at such sale, when his consent was given upon conditions which the administratrix had violated, and no sale had been made under the order consented to.
    APPEAL from the Civil District Court, Parish of Orleans — St. Paul, J.

      J. Zach Spearing, for Mrs. Alvine Teller, Plaintiff in Rule, Appellee.

      Henry Ghiapella, for Widow A. O. Loeper, Administratrix, Defendant in Rule, Appellant.
   Statement op the Case.

The opinion of the court was delivered by

Nigholls, C. J.

On the 21st of May, 1897, Adolph C. Loeper granted a special mortgage with the clause de non alienando in favor of Tames C. Rodd, agent, to secure the payment of a note for two thousand two hundred dollars, dated May 21st, 1897, payable one year after date, with interest thereon at eight per cent, per annum from date until paid, and also the payment of attorney’s fees and costs, on the undivided half of certain real estate in the city of New Orleans, known as Loo-per’s Park, which was fully described in the notarial act in which said mortgage was granted. The act of mortgage imported confession of judgment and by its terms the mortgagor consented and agreed that in the event of the notes not being punctually paid at maturity, the mortgagee, or any other holder of the notes, should cause the mortgaged property to be seized and sold without the benefit of appraisement.

The property so mortgaged belonged to the mortgagor as his separate property; the other undivided half of the same property belonged to the wife of the mortgagor as her separate paraphernal property. Adolph C. Loeper, the mortgagor, died intestate on the 30th of November, 1899. On the 3rd of J anuary, 1900, his widow (Louisa Bader) applied to the District Court to have an inventory taken and to be appointed administratrix of his succession. An inventory was accordingly made on the 20th of January, from which it would appear that the entire assets of the succession consisted of this undivided half of LoepePs Park, valued at thirty-five hundred dollars, and the stock and fixtures thereon, valued at twenty-five dollars.- Letters of administration issued on the 14th of January, -1900.

On the 16th of January, 1900, the administratrix presented a petition to the District Court, in which she averred that there were privileged mortgage and ordinary debts due by the succession and there were no funds on hand to liquidate the same; that it was necessary, in order to realize sufficient sums to pay the same, that the immovable property of the succession should be sold. After describing the property inventoried, she prayed that the same be sold at auction by Alfred O. Greene, auctioneer, on the following terms and conditions: “One-half or more ■cash, at the option of tide purchaser, the balance on a credit of one and two years, represented by notes bearing eight per cent, per annum interest from date of adjudication until paid, and secured by-special mortgage and vendor’s privilege on said property, together with the usual security clauses, the pact of non-alienation, the five per cent, fees in favor of the attorney who may be employed in case of judicial proceedings, the transfer of insurance policy to holder of the mortgage notes, the purchaser to assume the taxes of 1900 and to pay all the United States internal revenue stamps on act of sale over and above his bid, and to make a ten per cent, deposit with the auctioneer at the time of adjudication, act of sale to be passed before E. J. Barnett, notary public, at the expense of the purchaser.”

The district judge upon the same day ordered the sale applied for, to be made by Alfred'O. Green, auctioneer, after the legal delays and advertisements and on the terms and conditions prayed for.

On the 23rd of March, 1900, the property was offered for sale and at this offering-one William Schroeder was the last and highest bidder, for the price of thirty-six hundred dollars. The other undivided half of Loeper Park, which belonged to the widow of Loeper, had been advertised for sale at public auction on the same day, but was not sold. Schroeder refused to make the deposit required to be made by the terms of sale and to be bound by his bid.

The administratrix took a rule upon him to -force him to compliance, but this rule never went to trial and was discontinued. . A compromise was effected between him and the administratrix, by which he was released from all responsibility upon bis bid on payment of seventy-five dollars to tbe administratrix.

On tbe 24tb of May, 1900, the administratrix filed a' supplemental petition, in which, after reciting the above facts, she prayed de novo for a sale of the same property upon the same terms upon which it had been offered before, the sale to be made by Denis & Danziger, auctioneers. On the 21st of June, 1900, Mrs. Alvins von Loilen, widow of James Teller, appeared in court, through her attorney, and after reciting the fact that she was the holder and owner of the mortgage note executed by Adolph C. Loeper, on his undivided half of the property described as Loeper’s Park, she averred that the administratrix of this succession, without notice or knowledge of mover, obtained an order from the court on'May 24th, 1900, ordering the sale of the said property on terms of one-half or more cash, at the purchaser’s option, and the balance at a credit of one and two years, represented by notes bearing eight per cent, interest per annum from the date of adjudication until paid; that the said order was improvidently granted, and should be set aside for the reasons, that, on January 16th, 1900, the administratrix of this succession obtained an order for the sale of the said property, under which said order an adjudication of the said property was had and made; that the said adjudication should have been enforced by the administratrix, but that she, without any warrant or authority in law, and without any legal justification, released, or, pretended to release, the adjudicatee from his obigation under the adjudication; that such action on the part of the administratrix was beyond her power and authority, and was damaging to the interest of mover and of this succession; tho t the said administratrix should be condemned and ordered to enforce the said adjudication, or in default thereof she and her surety should beheld in damages.

That the said order, obtained on May 24th, 1900, was improvidently granted for the further reason that the terms of sale as fixed and stated in the said order were illegal and contrary to the wishes of mover, and infringed upon and derogated from her rights as the holder and owner of the above described note, which was secured by first mortgage ánd lien on the said property by said act before said Barnett, notary public, on May 21st, 1897, which said act contained the pact de non alienando: that under the terms of the said act of mortgage, mover was entitled to have said property sold for cash and without appraisement, whereas the said order fixed the terms as part on credit, and under the law the property, if sold under tbe said order, would be sold subject to the appraisement in. the inventory in these proceedings; that, as afore alleged, mover had no notice of the intention of the administratrix to apply for the said order; that, for the reasons above alleged, the said order was improvidently granted on May 24th, 1900, and should be avoided, annulled and set aside.

In view of the premises she prayed that the order of the court granted on the 24th of May, 1900, should be vacated, annulled and set aside.

In the meantime Mrs. Teller had, on June 1st, 1900, filed a petition in the District Court in which, after making the allegations usual in petitions for executory process, she, as holder and owner of the Loeper mortgage note, applied for and obtained an order for the seizure and sale, without appraisement, of the mortgaged property for cash, to pay the said note, interest and attorney’s fees and costs. Under this order the sheriff seized, and he has still the property in his possession under seizure.

The administratrix answered the rule taken upon her for the setting aside of the second order of sale. She averred:

First — That plaintiff was not authorized by law to proceed summarily by rule.

Second — That plaintiff in rule and her agent and attorney in fact. J ames T. Rodd, were esto£>ped from objecting to a sale on terms partly cash and partly on credit, by their conduct, viz: by allowing the property to be put up at auction on a prior occasion, viz: on respondent’s application as administratrix, on March 22d, 1900, by Alfred Greene, auctioneer, on terms of sale identical in all respects with the terms of sale which were now complained of.

Third — That plaintiff in rule and her agent and attorney in fact, James T. Rodd, were estopped by conduct, viz: by bidding at such prior sale on terms of cash and credit identical in all respects with the present terms of sale, and by acquiescing in said prior sale of said property on such terms, partly cash and partly on credit.

Fourth — That plaintiff in rule and her agent and attorney in fact, James T. Rodd, by such conduct, acquiescence, action, words and language, inaction and omission, etc., etc., had led respondent to believe that they would not assume a position inconsistent with that assumed heretofore, and on the faith of which a new application for sale of the property was made by the respondent, after the first adjudication and sale had fallen through, by reason of misunderstanding with the adjudicatee.

Fifth — That respondent was compelled to abandon the first adjudication made on March 22d, 1900, to Wm. Schroeder, because there had been a misunderstanding on his part as to the quantity of land being sold, and because by the recent death of Auctioneer Alfred O. Greene, respondent could not prove the adjudication against the denial of said adjudicatee, William Schroeder, and could not have had the act of sale and prooes verbal signed by the officer designated by the order of court.

Sixth — That -it was to the interest of the succession and of all its creditors and heirs that the property be again put up at auction on terms similar to those of the first sale, and that it was to the interest of plaintiff in rule, as mortgage creditor in particular, that such course be pursued.

Seventh — That it would have been injudicious and unwise and expensive to attempt to enforce the adjudication of William Schroeder, and the delays and uncertainty of litigation would not justify such a course.

Eighth — That the property was now being advertised for sale and would be sold in a few days at public auction on terms of cash and credit which were satisfactory to plaintiff in rule and her agent, James T. Eodd, two months and a half ago, and ought to be satisfactory again, since nothing had happened since the first sale which would make a sale for cash more desirable than the first time.

Ninth — That terms partly cash and partly on credit were always more advantageous in the matter 'of sale of real estate at public auction than a cash sale, and that respondent had obtained the order of sale, in the best interest of all concerned.

In view of the premises respondent prayed that there be judgment in her favor as administratrix of this succession, rejecting plaintiff’s claim and demand and dismissing the rule herein taken and for all costs of suit.

The District Court made the rule absolute and accordingly ordered that the order of sale granted by it on the 24th of May, 1900, on the supplemental petition of the administratrix ordering the sale of the real estate by Denis & Danziger be vacated and set aside at the cost of the succession.

The administratrix appealed.

Opinion.

The evidence shows that the first* advertisement'and offering for sale of the undivided half of “loeper Park’’ belonging to Adolph C. loeper, on the terms and conditions announced in the advertisement, were made under an order of th"e District Court rendered upon the petition of the administratrix of the succession. That this order was asked for after a verbal agreement to that effect had been entered into between Rodd, the agent of Mrs: Teller, and the executrix; that the consent of Rodd to this order and to those terms was based upon the promise of the administratrix (the wife of the deceased), who owned the other undivided half of the same property, and upon which Mrs. Teller had also a separate special mortgage, that her half of the property should be advertised to be sold on the same day and on the same terms; that this agreement was predicated upon the belief that a sale of the entire property upon the same day would be more advantageous to all parties than would be a sale of simply an undivided half. The evidence shows that Loeper’s half of the property was offered for sale and that one Schroeder was the last and highest bidder, but that he refused to make the cash deposit required by the terms of sale, or to be bound by the adjudication to him, on various grounds. That a rule was taken against him to enforce specific performance of the bid, but that it was discontinued by reason of a compromise between the administratrix and himself, that he should be released from all liability by the payment of seventy-five dollars to the administratrix.

The evidence shows that Rodd bid also upon the property at the sale, and that after the refusal of Schroeder to take title efforts were made to have Rodd take title under the adjudication by substitution of his or Mrs. Teller’s name as adjudicatee instead of Schroeder, but that they failed, for the reason that, although Rodd was willing to take the property under Schroeder as adjudicatee, upon the same terms that Schroeder had purchased, he was unwilling to have the adjudication made direct to him. It appears that Mrs. Loeper’s half was not offered for sale, as had been agreed upon and as it had been advertised it should be. for the reason that she had placed a five thousand dollar lower limit as the price of her half of the property.

Pending negotiations looking to some new arrangement for the sale of the property, the administratrix obtained a second order for the sale of Loeper’s half of the property upon the original terms of sale and under this order it was advertised to be sold, but no advertisement was made for the simultaneous offering of Mrs. Loeper’s half of the same property on the same terms. Mrs. Teller then proceeded to the enforcement of her mortgage upon the property by executory process, and under the court’s orders it was placed and it still is under seizure. She then obtained a rule to be taken on the administratrix for the setting aside of the order of sale which she had obtained, and this rule being made absolute the administratrix appealed.

There can be no doubt under numerous decisions of this court of the right of the holder of a note secured by special mortgage on certain property with the clause de non alienando, to enforce the mortgage by executory process, notwithstanding- the fact that the debtor had died and his succession was under administration. We do not understand that the correctness of that proposition is questioned in this case. The issue raised by the contention of the parties is whether, conceding that Mrs. Teller had the right to have proceeded in that manner, she is in a position, under the facts and circumstances of this particular case, to exercise that right, whether the situation is not such as to have caused her to lose the right.

. The administratrix maintains that the second order which she 'obtained can not be legally set aside in order to permit the sale of the property to be effected upon the order of the seizure and sale obtained by Mrs. Teller under executory process.

She relies to sustain her position upon two grounds:

First — The priority in date of the two orders of sale which she has obtained over that of the order obtained in the executory proceedings.

Second — The consent of Mrs. Teller that the property should be sold “inside of the succession,” under an order to that effect obtained by the succession representative and the consequent waiver and abandonment by her of her right to have it .sold under executory process.

This court, in Poutz vs. Bistes, 15 Ann. 636, and Moreno vs. Preston, 34 Ann. 875, refused to allow a mortgage creditor to proceed by executory process where the debtor had died and his succession was under administration, and the succession representative had obtained an order of sale in the probate court for the sale of the property before the mortgage creditor had obtained an order for executory process in the District Court. In the first of these cases the court said:

“The property seized under executory process had been inventoried in the Second District Court (the probate court) and had already been ordered to be sold by that court for the payment of debts. The subsequent order of the Sixth District Court for the sale of the same property was in conflict with the jurisdiction assumed by the Second District Court, and therefore irregular. The plaintiff, after the Second District Court had issued its order for sale, ought to have applied to that court for a modification, of the terms of sale, if he was not satisfied with the same. Any other rule would produce unnecessary embarrassment.”

The decision in the Moreno case, in the 34th Annual, was based upon that of Poutz vs. Bistes, the court declaring that “the probate court having acquired jurisdiction over the property before any seizure was made, the order of sale (by the probate court) was properly rendered.”

It will be seen that these decisions turned upon the question of the jurisdiction of the two courts, and not upon the mere fact of the priority in the dates of the two orders.

This court simply recognized and enforced the well known rule that where two courts have concurrent jurisdiction over the same subject-matter, the court first exercising the jurisdiction will be maintained in it as against orders of the other court issuing later.

The decision on the issues raised in the present proceeding does not turn on that phase of the question. The District Courts, under our present system, have jurisdiction fully over both probate and ordinary civil proceedings; therefore there is no clashing of the jurisdiction of courts involved.

That fact is alluded to in Walmsley vs. Levy, 36 Ann. 227, in which Chief Justice Manning, as the organ of the court, declared that'it was not necessary to decide authoritatively in that case whether the precedence in point of time of the order of sale in the mortuaria was determinative of the question which order should prevail.”

“That the dictum in Poutz vs. Bistes was seemingly based on the embarrassment which would be produced by a conflict of jurisdiction, that such embarrassment could not exist in the case then before the court.1' The Supreme Court, in that case, permitted the sale to proceed under the first order obtained (that obtained by the executrix in the mortuaria proceedings), but the court acted evidently upon the theory that no injury would result to any one thereby, that the rights of all parties could be and would be amply protected in the premises. It said:

“The lower judge maintained the creditor’s injunction so as to prohibit the sale proceeding on the terms first prescribed, and dissolved it as to the absolute prohibition of sale under the order in the mortuaria and ordered that sale to proceed. The only reason for a modification of that judgment must be that the creditor prefers to be the instrument through the sheriff of making the sale and distrusts the fidelity of the executrix in accounting for the funds. He has provided for that contingency by obtaining special security for himself, and it matters not under that state of facts, therefore, whether the executrix make the sale under her order or that to be made under his process.”

The same issue was before this court in the Succession of Thompson, 42 Ann. 120, and in that case it was held that mere priority in the dates of orders of sale, one obtained by the administrator of a succession, the other under executory process by a party holding a special mortgage with the clause de non alienando, was not determinative of the question as to which order should prevail. In that case the first order had been obtained by the succession representative. The court set aside and allowed the sale to proceed under the later order under executory process.

It is apparent from reading the opinion in the case that the court held that this matter was to be determined in different cases by their special facts. This court (Chief Justice Bermudez being its organ) referred to the fact that the claim of the creditor rested upon an express contract right. That neither the debtor’s heirs nor his creditors could by the death of the debtor acquire greater rights, privileges or immunities than he himself possessed. The Chief Justice pointed out the great advantages resulting to a creditor from being able to proceed to the enforcement of his rights dehors the mortuary proceedings, and the embarrassments, delays and additional expense to which he would have to submit by being forced to await the general final settlement of the succession.

Referring to the order of sale granted on application of the executrix he said it was an interlocutory order, which the court itself might proprio moi« have vacated.

He said that while there existed no doubt that as a rule all the property which a person dies owning becomes subject to the orders of the probate court, for the benefit of creditors, it was equally true that such jurisdiction was not so absolute as to strip the mortgage creditors of the deceased of the 'right of proceeding summarily against such of said property as may have been affected to them to satisfy some money claim, ounless it was shown that such creditor had directly or indirectly relinquished the same and had submitted entirely to the probate jurisdiction over the mortgaged property. Neither could there be any doubt where a creditor fails to apply within a reasonable delay for executory process, and the probate court assumes jurisdiction over the property and on. proper proceedings directs the sale, the creditor would be estopped by his laches from subsequently questioning the order of sale so as to press a claim for executory process against it.

That in cases of acquiescence, express or implied, or of laches, his only remedy would be to apply for a modification of the terms of sale when not cash, if those fixed infringed on his preexisting rights to different conditions; that the cases to which counsel of appellant referred (in that case) showed that the creditor had either formally or inferentially or by his laches in some way acquiesced in the probate jurisdiction and he was not permitted afterwards to resort to executory process. The court was of opinion in the case then before it that the executrix had acted with undue haste in obtaining the order for a probate sale; that she had not afforded the mortgage creditor the proper time or delay in which to take out executory process.

It appears that the executrix had obtained the order of sale six days after her appointment and more than a month before the return of the inventory into court. The court was of opinion that a mortgage creditor praying for executory process in the same month in which his debtor died would seasonably enforce the right to executory proceedings. Our own opinion accords with the'views expressed in the Thompson case. There should be no unseemly haste to obtain what has been designated "scrambling possession" of the property and funds of a succession. We think each ease should stand on its own facts. Delay in applying for executory process would not per se and necessarily evidence laches, for there might be special reasons in some particular case why in the general interest of heirs and creditors matters should be held for a time in abeyance.

In the case before us there is no evidence that there exists any special or judicial mortgage priming that of Mrs. Teller, nor that there are any creditors clamoring to be paid. If such there be, 'the cash sale which she insists upon, however much it might increase the price to be obtained for the property, would not place the succession representative in funds to pay the pressing claimants.

A more difficult feature of this case is found in the part taken by Mrs. Teller and her agent, in respect to the manner of the sale of this sue-cession property. Mr. Rodd unquestionably gave his consent to the first order of sale and to the first offering of the property at public auction, lie himself bid upon the property at the offering made under that order. The authorities are to the effect that a party holding a special mortgage must stand upon his right of(summary proceedings; that if he waives or abandons it he can not later reassert his original rights and withdraw a prior consent which he may have given for ordinary proceedings to be followed. Gurley vs. Coquet, 3 N. S. 498; Succession of Patrick, 25 Ann. 155; DeGruy vs. Hennen, 2 La. 457; Oliver vs. Decuir, 31 Ann. (not reported), and 31 Ann. 112. Mrs. Teller did not herself proceed by successive proceeding's or by simultaneous proceedings via ordinaria and via execuiiva. She did consent by agreement with the executrix that the latter should sell the property in mortuary proceedings, and her agent bid at the sale made under .the proceedings so authorized. This was done, however, upon conditions and under promises which were not carried out, and the order under which the proposed sale was to be made was withdrawn and a new one obtained, which has not yet been carried out. We do not think Mrs. Teller has gone too far to recede, nor do we think she has forfeited any of her legal rights, under her mortgage. She was entitled to have the second order of sale obtained by the administratrix set aside and to proceed by executory process under her mortgage. We are of the opinion that the District Court is correct in its judgment, and it is hereby affirmed, costs to be borne by the succession


source: Caselaw Access Project

author: Blanchard, J.

license: Public Domain

text:
    No. 13,671.
    Robert E. Rivers vs. Oak Lawn Sugar Company, Limited.
    Syllabus.
    1. The case involves construction of former judgment of this court, and it is held that an erroneous interpretation was placed upon the same by the lower court.
    2. It is, after all, the decretal part of the deliverance of the court which must govern.
    3. But, anyhow, the case is held to be with the plaintiff on the facts relating to the merits.
    APPEAL from the Civil District Court, Parish of Orleans— Theard, J.

      Olegg & Quintero for Plaintiff, Appellant.

      Saunders & Gurley for Defendant, Appellee.
   The opinion of the court was delivered by

Blanchard, J.

This case is before the court for the second time, or, rather, the present suit is the sequel of the former one.

The first report of it will be found in 52 La. Ann. 762.

What was at issue there was (1) whether Rivers (the plaintiff) was entitled, as against Thompson (to whom he had sold his holdings of stock in the Oak Lawn Sugar Company, Limited, amounting to 280 shares) to a judgment awarding him the profits or earnings of the company for the year 1897; (2) whether Rivers was entitled, as against the Oak Lawn Sugar Company, to a judgment for the dividends, or profits or earnings, on account of the sugar crop of 1897, which pertained to the stock he had held, but which had been sold to Thompson.

Rivers claimed that- while he had sold his shares of stock to Thompson, this sale was not effected until April 1898, and that in making the sale he had reserved to himself the profits or earnings or dividends that belonged to the stock as the result of the sugar crop of 1897.

This contention was stoutly resisted by Thompson, who denied there had been any reservation as asserted by his vendor.

Rivers claimed that the Oak Lawn Company had made a profit of $24,024.00 as the result of the crop raised in 1897, one-fourth of which, or $6,006.00, was due him as holder of one-fourth of the capital stock, or 280 shares.

This contention was combatted by the company, who denied that any dividend for the crop year 1897 had been declared, or would be declared, and denied the plaintiff’s right to compel it to declare a dividend.

That suit was filed in November 1898. The prayer of its petition was for a judgment in Rivers’ favor decreeing him to be the owner of his due proportion of the profits and gains made and earned by the defendant company during the year 1897, and that the company be condemned and ordered to apportion and pay the profits and gains of that year to the respective shareholders in due proportion, and to pay to him (Rivers) the sum of $6,006.00, with legal interest from judicial demand.

This court found, as between Rivers and Thompson, that there had been a reservation to the former of the right to claim and have the earnings or profits due on the stock as for the year 1897.

And it found, as between Rivers and the company, that the net earnings for the crop year 1897 amounted to $24,024.90, and that a dividend covering that sum had been declared. This was the positive, direct testimony of the company’s treasurer, J. M. Burguieres, given in the case, and he testified in the presence of the president of the company. There was no contradiction, or attempt at contradiction, of his statement.

On these findings, this judgment was rendered:—

“It is, therefore, ordered and decreed that the judgment of the lower court be annulled, avoided and reversed, and it is now ordered and decreed that the plaintiff, E. E. Eivers, do have and recover of the Oak Lawn Sugar Company, Limited, the sum of one-fourth of the declared profits earned, amounting to the sum of six thousand and six dollars ($6,006)), with five per cent, interest from judicial demand; and that the demands of the defendant, M. Frank Thompson, be rejected.”

Applications for rehearing were filed on behalf of both defendants.

That by M. Frank Thompson was limited to asking a reconsideration of the questions of law arising on his branch of the case, the contention being that there was error to his prejudice in the conclusions reached.

That by the Sugar Company went further and alleged .errors of both fact and law in this, to-wit:—

“1st. That there is no evidence, oral or documentary, in the record on which any judgment can be based against your petitioner; and particularly none to support the judgment in favor of the plaintiff for six thousand and six dollars.
2nd. The decree giving five per cent, interest from judicial demand is erroneous, because dividends bear no interest, and the corporation was a mere stakeholder. Such interest could run, in any event, only from the date when the dividend was declared, and there is no evidence of any fixed date of such declaration.”

In connection with this application, affidavits were filed, the purport of which was to negative the testimony which Burguieres, the treasurer of the company, had given, to the effect that a dividend, based upon profits arising from the crop of 1897, had been declared, and it was insisted that while there was evidence to show that Eivers was the owner of 280 shares of the stock of the.company, there was none to show what the total number of shares outstanding was, and, in this connection, to show that Eivers’ holdings equaled one-fourth of the total number of shares. One of the affidavits stated the capital stock of the company to be $140,000.00, divided into fourteen hundred shares of one hundred dollars each.

If this was correct, then the judgment of the court was erroneous in decreeing Eivers entitled to recover one-fourth of the dividend which the testimony showed had been declared. It should have been'owe- fifth of $24,024.90, or $4,804.98, instead of $6,006.00 as fixed by the judgment.

On the showing thus made, the court, passing upon the applications for rehearing, said, in substance, that it found no occasion to change the conclusions reached on the law as announced in the original opinion, but that evidently there was error “as to the actual interest of Rivers in the company, which is represented by his shares of stock therein,” and that for the purpose of having that question of fact properly determined the case should be remanded “with instructions to the District Court to examine and determine that question, without, however, disturbing our judgment and decree in any other respect.”

Accordingly, this decree was entered up:—

“It is, therefore, ordered and decreed that in so far as the application for rehearing relates to the merits of the case, same is hereby refused. And it is further ordered and decreed that, in so far as the question of fact with regard to the interest of the plaintiff in the Sugar Company is concerned, our decree be vacated, and the case be remanded in that respect to the District Court, with instructions to examine and determine that question — without, however, interfering with the judgment and decree of this court in any other respect.”

With respect to defendant Thompson, all parties agree that this was an overruling entirely of his application for rehearing.

With respect to the other defendant, the Sugar Company, widely divergent views are entertained by the plaintiff, Rivers, and the company as to the scope of the judgment of the court, and out of this disagreement has arisen this second appeal.

The ease having gone back to the District Court, Rivers took a rule upon the Sugar Company to show cause why his interest in the earnings and dividends for 1897 should not be fixed at one-fifth interest therein, alleging that to be his true interest, and why judgment should not be entered up in his favor for $4,804.98.

, His contention is that to ascertain and determine what his interest is —whether one-fourth or one-fifth — was the sole purpose of the remand, all other questions arising in the cause having been settled in his favor.

The Sugar Company, answering the rule, set up its contention, which is that the purpose of the remanding was to ascertain whether any dividend at all had been declared by the company for 1897, and it denied that any sum had become due as dividend out of the profits of the company for 1897, or that any dividend had ever been declared.

It insisted on opening the door to this inquiry. This was resisted on behalf of Eivers, who sought to hold the inquiry down to the ascertainment of the amount of his interest in dividends or earnings already adjudged to have been declared.

It will be, thus, seen that this controversy involves the construction of the judgment rendered by this court on the first appeal.

The judge a quo adopted the view entertained by the company, admitted evidence in support thereof over the objection of the palintiff, and reached the conclusion, on the showing made, that the latter was. entitled to take nothing. Accordingly, he discharged the rule.

The .plaintiff appeals.

Ruling — The contention of the Sugar Company is based mainly upon these words found in the opinion of the late Justice Watkins as the organ of the court on'the application for rehearing on the first appeal, to-wit:—

“But counsel for the Sugar Company have attracted our attention to the fact, that an examination of its books, since our opinion was handed down, has disclosed a manifest error in the statement of its Treasurer as to the actual interest of the plaintiff in the Company, which is represented by his shares of stock therein.”

It is urged that this plainly shows the remand was allowed because of an error disclosed by the affidavits and contained in the treasurers statement, and that as neither of these, documents “say one word about any error as to the amount or proportion of sioclc owned by Colonel Eivers,” to establish what such proportion was could not have been the purpose of sending the case back.

But counsel is mistaken. The company’s application for rehearing distinctly makes the point that there was no evidence “to support the judgment in favor of the plaintiff for six thousand and six dollars,” the affidavit of the president of the company gives the total number of shares of the company at fourteen hundred, thus showing that the 280 shares held by Eivers was one-fifth of the whole and not one-fourth as the judgment erroneously decreed, and the brief of counsel in support of his application distinctly points out this error and asks its correction.

The organ of the court was mistaken in saying the error as to the actual interest of Eivers in the company was disclosed by the statement of the treasurer. He was correct, though, in saying it was disclosed by the affidavits filed.

But, after all, it is the decreetal part of the deliverance of the court which must govern, and when we analyze that we find (1) that as far ás the merits of the case are concerned, the application for rehearing was flatly refused; (2) that as to the question of fact raised with regard to Rivers’ interest in the Sugar Company, the former decree was vacated; and (3) that for the ascertainment of the truth as to the extent of his interest, and that alone, was the case remanded. The “interest” of Rivers referred to the extent of his holding in the company, not to whether or not a dividend for the crop year 1897 had been declared. There had been no evidence adduced as to what that interest was, no admission of record was to be found showing it, and the judgment of the court merely followed the declaration of the petition that it was one-fourth. The affidavit filed with the application for rehearing showed this to be error, but the court could not act merely on the statement of this affidavit and reduce the judgment from $6,006.00 to $4,804.98, and, hence, it became necessary to vacate that part of the decree and remand for the litigants to establish contradictorily with one another the extent of Rivers’ interest in the company’s stock.

We are constrained to hold that our learned brother of the District Court has not interpreted aright the judgment of the court, and that the enquiry committed to his hands should have been confined to ascertaining whether the actual interest of the plaintiff was one-fourth or one-fifth of the outstanding stock of the company.

And since, in the later proceedings taken, counsel for plaintiff admitted of record that interest to be one-fifth, the case should have stopped there and judgment entered up for plaintiff in the sum of $4,804.98.

But if we follow the lower judge into the enquiry he opened up, the case is equally with the plaintiff. Undoubtedly, as the result of the sugar crop of 1897, there was a net profit or earnings of $24,024.90. In January 1898, the Board of Directors of the Company had directed a dividend to be paid out of the profits of the crop year just passed, but since sugars, called “seconds” and “thirds,” were still on hand unsold the percentage of this dividend could not then be fixed, and, accordingly, the resolution directed the matter of the amount of the dividend to be suspended until the sugars were sold.

Subsequently they were sold and then the profit of the crop was figured to be the sum named above. This had been done before the case was originally tried on its merits in the District Court, and, thus, Mr. Burguieres, the company’s treasurer, could rightly testify, as he did, that a dividend had been declared and give the amount thereof, to be divided among the shareholders, at $24,024.90.

But, it seems, instead of paying' the same out to the shareholders this sum, called by the company’s counsel “operating profits,” was used in meeting expenses of the plantation in 1898, and then when the business and cropping operations of 1898 were wound up a dividend 'of 47 per cent, on the stock was declared, of which 30 per cent, was paid in cash to the shareholders; the payment of the remaining 17 per cent, being deferred.

With reference to this 47 per cent, dividend the affidavit of the president of the company, filed with the application for rehearing, recites that the same “was declared out of the profits of said company since its organization without reference to the result of the crop of any one year.”

So that the profits of the year 1897 entered into its make up. True, those profits had been expended in operating expenses in 1898, but they were a credit as against the crop of that year, and when in February 1899 the big dividend of 47 per cent, was declared, Rivers, held entitled to a share of the profits or earnings of the company for 1897, was entitled in equity to an accounting and to have paid over to him what would be due on his holdings of stock figured on the basis of the profit realized on the crop of 1897.

For those reasons, it is ordered and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now adjudged and decreed that the plaintiff do have and recover of the Oak Lawn Sugar Company, Limited, the sum of four thousand, eight hundred and four and 98-100 dollars, with 5 per cent, interest thereon from February 27, 1899 — the date when the dividend of 47 per cent, on the stock of the said company was declared — costs of both courts to be taxed against the company.

Monroe, J., dissents.

Provosty, L, takes no part.

Rehearing refused.


author: Breaux, J.

text:
    No. 13,745.
    Mrs. Nina Robinson and Husband vs. James W. Atkins.
    Syllabus.
    Plaintiff sought to recover a tract oí land (included in the boundaries of a place known as Lovely Point plantation) which she avers was not included within . the boundaries of the property mortgaged and afterwards sold in foreclosure proceedings. »
    While the boundaries do not touch the land in question at all points, they none the less indicate well enough that the land claimed is part of the Lovely Point plantation. The evidence shows that Lovely Point plantation was mortgaged, and that this plantation was sold with boundaries, as set forth in the act of mortgage. The name of the plantation, the boundaries, and the United States’ divisions and sub-divisions, one considered with reference to the other, correctly described the land in controversy, and show that it was mortgaged and sold, as alleged by the defendant.
    After this first owner had parted with his title, he could not be heard to the end of destroying the validity of the title which he transferred to a third person, under whom defendant holds. He is bound by his own- deed of transfer, even though he is not bound in warranty, to an extent at least by which he is prevented from seeking to destroy the validity of the title he chose to transfer.
    APPEAL from the Second Judicial District, Parish of Bossier— Watkins, J.

      A. D. Land, Jr., T. T. Land, and Thigpen & Wester, for Plaintiff, Appellant.

      Alexander & Wilkinson and Joannes Smith for Defendant, Appellee.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff sues for the recovery of a tract of land described as being the east half of east half of section five, in township fifteen, range eleven west, containing one hundred and sixty acres.

The facts of the case are that plaintiff mortgaged her plantation known as the “Love Point Plantation” to defendant’s brother, in 1886. This plantation was described in the act of mortgage as bounded west by Red River, north by Atkins’ plantation, called Knox Point, south by the Eurniss plantation, and on the east by swamp lands near Elat River and Bisteneau Lake, embracing these and other lands. Here, in the deed, follows a specific description of the land by townships, ranges, sections, quarter sections, and lots, in all, containing eighteen hundred acres, more or less. The following is a sketch of the land:

In 1895 the mortgagee parted with the notes identified with, and secured as to thei'r payment by, this mortgage; and his transférree, J. Y. Hughes, foreclosed and bought the “Lovely Point plantation” for an amount less than the sum. due and secured by the mortgage in question. The adjudieatee, Hughes, some time after sold the land here claimed to N. L. Lindsley for the price of one thousand dollars. The deed was a quit claim deed. He, Lindsley, about the same time, obtained a quit-claim deed to the land from the owner of the adjacent tract, known as “Knox Point,” so that he had two titles to that one tract.

Lindsley sold the same property to the defendant for the sum of me thousand dollars. Plaintiff charges that defendant and N. L. Lindsley entered into a conspiracy to acquire this land, in fraud of her rights.

Defendant, in his answer, sets up that he bought the property at sheriff’s sale after having consulted a lawyer who advised that the title was good; that the land was covered by the sheriff’s deed, as its recitals included “Lovely Point plantation,” and other lands. The District Court decided that the defendant is the owner of the land in controversy and rejected plaintiff’s demand. From this judgment, plaintiff appeals.

The land in question was the property of plaintiff (from whom title is derived) at the date that she executed the mortgage before mentioned in favor of defendant’s brother as mortgagee. The witnesses who have been examined upon the subject testify in a most direct manner that it was always looked upon and considered as a part of “Lovely Point plantation.” The plantation of plaintiff was known under that name and the lands adjacent were known as Lovely Point lands. The identification of this tract as forming a part of the plantation is complete.

We do not understand that plaintiff sought to prove that the land in question'was not known as forming part of the plantation, at any rate the testimony of her own witnesses would not sustain the contention that it is not known as one of the tracts of that plantation. Some importance must be given even to a mere name, for name in itself is a designation. To men, houses, animals, plants, metals, locations, and lands are given names for their identification and they sometimes serve as descriplio loci aut descriplio personae. As relates to mortgages, the name of the property mortgaged is taken and considered in several decisions of this court as almost sufficiently descriptive, if not entirely so. In the following, eases, effect, in matter of description, was given to the name of the places as identifying the property mortgaged. Levy vs. Ward, Administrator, 33 Ann. 1033; Dickson vs. Dickson, 36 Ann. 870; Bryan vs. Wisner, 44 Ann. 832. The Dickson case cited supra is particularly in point. In that case, the court said: “If the language of the act makes it clear that it was the Rush Point plantation that was mortgaged, then the numbers of the legal subdivisions named in the act become secondary and merely descriptive of the subject of the contract, the thing mortgaged.”

In the act of mortgage here, the “Lovely Point plantation” was described as embracing “these and other lands.” The tract in controversy being adjacent to the main body of the land, the proposition that it is not embraced within the description can not, in our view, be sustained in view of the testimony that this particular tract in dispute has always been known as forming part of “Lovely Point plantation.” The question arises, if the phrase quoted does not cover the land adjacent and known by the name before mentioned, what does it cover? The whole title, were we to sustain plaintiff’s contention, would then be restricted to the subdivisions of the United States survey, which was evidently not the intention of the parties.

In addition to the description by name, the mortgage contains a general description by boundary. True, this general boundary is not contiguous to plaintiff’s former plantation at every point along the boundary lines, but it is not an erroneous description.

It locates the lands with sufficient certainty to be located by any one who is at all familiar with locating lands. For instance, one of the legal subdivisions of the plantation, as described in the mortgage, is north half of section eight. Immediately above the northern lines of this section, is the land here in controversy. The boundary north of the “Lovely Point plantation,” as given in the deed of mortgage, is Plat river or the “Knox Point plantation.” This, as we take it, completely identifies the tract claimed by the plaintiff, when considered in connection with the name given to the property and the boundaries as set in the deed. As to the northern boundary, we think it is sufficiently given. As to the western boundary, true, a good portion of Red river, referred to in the act of mortgage as the western boundary, does not flow along the entire boundary, yet it touches that boundary enough to exclude the idea of a prejudicial error in that boundary.

When defendant offered to prove by witnesses that the land in dispute (E. % of E. %, Sec. 8) was part of the plantation in question, plaintiff objected to the introduction of the testimony to vary as .she contended, contradict, or amplify the description of property mortgaged, on the ground that the property to be mortgaged was described bv boundary and by United States subdivisions, and that while it might be shown that the land in dispute was covered by the boundaries given, defendant could not consistently claim that the mortgage was correct and accurate and at the same time offer to prove that the deed of mortgage intended to cover more and other lands than those expressly mentioned. ' The proposition, we think, would be sustainable if the defendant claimed other lands than those forming part of “Lovely Point plantation.”

But defendant specially alleges that while the land “was not specifically described by numbers,” it was included in the act of mortgage and formed part of the “Lovely Point plantation,” and he claims that the land in dispute was part of “Lovely Point plantation.” The purpose of the testimony was to prove that it formed part of her plantation, as alleged.

The testimony was admissible to prove the boundaries of that plantation and the different tracts it embaced. It did not, in that respect, contradict or vary the deed by which the defendant holds title, nor did the testimony have the effect of making a title, but it went to prove the title transferred. The record does not disclose any attempt on the part of the defendant or his ancestor in title to take undue advantage as charged. Plaintiff’s mortgagee, J. V. Hughes, who foreclosed and became the owner, thought that, perhaps, there was an equitable claim of some sort to the land and that, he testifies, is why he sought by getting rid of the land, as he did, to avoid all controversy in regard to it. But he adds, as a witness, “I did think when I bought this land at sheriff’s sale I was buying all of the land owned by Mrs. Robinson at or near Lovely Point plantation.”

No oral testimony tending to destroy a title to immovable property is admissible, and although the witness may have had some misgivings as to the title 'he transferred, after the transfer had been made, he could not be heard by oral testimony to attack its validity, particularly in the absence of proof of bad faith, fraud, and collusion.

There is not, in our view, any merit in plaintiff’s contention, arising from her averment that the sale to the defendant was made with the intention to circumvent her in her attempt to recover the property.

The two deeds obtained by defendant’s author to this property, grew' out of the desire, as we take it, of this vendor, to fortify his right as on owner by taking two deeds to the property, although as to one of these vendors, there was no apparent right.

“Lovely Point plantation” having been mortgaged and the foreclosure having resulted in a title to the whole place, we are firm in the conclusions that evidence shows that the land in dispute is part of that plantation. It, therefore, only remains for us to affirm the judgment.

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

Eehearing refused.


author: Watkins, J.

text:
    No. 13,267.
    George L. Bright vs. Walter C. Murphy.
    Syllabus.
    When the person sued for a trespass personally and individually is a public functionary or agent, the proof must affirmatively show that he did some wrongful or illegal act tending to render him liable personally ; and in the absence of such proof, he can not be held responsible for illegal acts performed under color of official authority.
    State agents and boards are endowed with no immunity from liability for trespass, but proof of some wrongful act should be made before liability will attach.
    APPEAL from the Civil District Court, Parish of Orleans— Ellis, J.

      George L. Bright, Plaintiff and Appellant, in propria persona.

      Cunningham, & Cunningham, for Defendant, Appellee.
   The opinion of the court was delivered by

Watkins, J.

The following extract from the brief of the plaintiii, presents his case very clearly, viz:

“The petition of the plaintiff alleges that he is the owner of a tract “ of land that has a front of 704 feet 6 inches on the New Canal and “Shell Boad; that the defendant, Murphy, maliciously, contriving and “ intending to hinder and deprive him of his rights and privileges to “ said property, and to unjustly aggrieve, vex, and damage him, did dig “ and haul away, and is now digging and hauling away, earth from in “ front of his property, making holes and excavations, thereby depriv- ing him of his rights of the use, beauty, and value of his property, “ and of the free and unobstructed egress and ingress thereto. He “ claims $300 for refilling the holes and excavations, and $1000 damages, “ nominal and exemplary; and he prays for an injunction.”

He also claims one thousand dollars as punitory damages. To this petition, the defendant filed the following exception, viz:

“That the work complained of is being done on the property of the “ State, under the direction and by order of the Board of Control of the “ New Basin Canal and Shell Boad, which has, under the law, full “ charge and control thereof, exceptor being merely their executive “ officer, as the superintendent of said New Basin Canal and Shell “ Boad, in which capacity alone he is acting; and that, therefore, said “ Board of Control is a necessary party to this suit, exceptor having no “ right or authority to stand in judgment for said Board, and suit was “ improperly brought against Him individually.”

By consent of the parties, this exception was referred to the merits, and thereupon the defendant filed the following answer, viz:

“He specially denies that he ever dug or hauled away the earth from in front of plaintiffs property described in his petition, or that he ever did any act maliciously intending to injure plaintiff or interfere with his property in any way. Bespondent shows that on or before the filing of this suit, under contract made April 28, 1898, between J. H. Gardner and the Board of Control of the New Basin Canal and Shell Boad through its president, acting in pursuance of its order and direction, said J. H. Gardner, as such contractor, was engaged in building a pile revetment along the west bank of the New Basin Canal between the New Orleans & Western Bailroad Bridge and Carrollton avenue, and filling with earth the intervening space between said revetment and the shell road; that before the filing of this suit, all the work on that part of the line in front of plaintiff’s property had been completed and. therefore, there was no existing ground for an injunction. That all the earth taken from in front of plaintiff’s property and used in filling said' space behind the revetment was taken from the State’s property, lying back of the shell road, and it had all been previously taken from the bottom of the canal in dredging, either by the Board of Control or under contract with it.”

On these issues the cause was tried, and by the judge a quo decided in favor of the defendant, rejecting the plaintiff’s demand, and the latter has appealed.

The defendant is charged with a trespass upon the plaintiff’s land which is situated adjacent to the New Canal and Shell Eoad, and that he is maliciously contriving and intending to hinder and deprive him of his rights and privileges on, and access to his property, and to unjustly aggrieve, vex and damage him, by digging and hauling away earth from in front of his property. His claim, in argument, is that it is sufficient to make out his case, that the proof shows that the defendant did the digging, notwithstanding it also shows that he was, at the time, the superintendent of the canal. But the defendant’s exception is to the effect, that the work was done on the property of the State, and under the direction and by order of the Board of Control of the New Basin Canal and Shell Eoad, which, under the law, had full charge and control thereof; and that he was merely its superintendent.

He specially denies that he dug or hauled any earth away from the front of plaintiff’s property, or that he ever, in any way, intended to injure him. He avers that all the earth taken frqm the front of plaintiff’s property and used in filling in the space behind the revetment, “was taken from the State’s property, lying back of the shell road, and it had all been previously taken from the bottom of the canal in dredging,” etc.

We are of opinion that either one of the foregoing defenses, if sustained by the proof, is perfect and complete.

The judge a quo assigns the following reasons for judgment, viz:

“The evidence supports the defense tendered by the exception, as well as by the answer. Whatever was done, of which the plaintiff complains, was done by the New Basin Canal and Shell Eoad Board of Control, whether through Gardner, as contractor, or defendant as superintendent. Personally, the defendant did nothing, and the Board is not sued. The plaintiff was notified by the defendant’s exception that the Board of Control was a necessary party.”
The judge concludes his statement with the following very just observation, viz: “There is no rule of law or justice that would hold the defendant liable to the plaintiff for any cause alleged herein.”

The Board of Control of the New Basin Canal and Shell Eoad Is created by statute, and its members are appointed by the Governor; and the management of its affairs is placed under a superintendent who is, also, appointed by the Governor. To him is confided the management of the affairs and operation of the canal and shell road; and upon him is imposed the responsibility of their administration. Sections 1 and 5 of Act 144 of 1888.

The Act provides, “that the said superintendent shall, under the direction of the said Board of Control, proceed without unreasonable delay, to repair and improve said canal and. shell road, and he shall keep the shell road in repair, etc. Id. Section 17.

In virtue of the power vested in the Board, it passed the necessary ordinance or resolution directing the letting out by contract the work of revetting the canal and the filling in the space between the revetment and the bank. That, after due advertisement, the president, or chairman of the Board, let the work to J. IT. Gardner by contract; and in the contract it was stipulated that the dirt to be used for the filling was to be obtained by the contractor from the bottom of the canal, by dredging.

The proof does show, however, that some of the dirt used in filling was taken from that portion of the State’s property which is adjacent to that of the plaintiff; but the evidence discloses that the digging and removal of this dirt was done by Gardner as contractor of the Board of Control and by those persons who were in his employment. The work was not done by the defendant, nor by his direction. The contract for the work was let to Gardner by the Board of Control.

The defendant is sued as a trespasser for a personal and individual wrong-doing, and the proof fails to show that he did, personally, any act even tending to make him liable; and in the absence of such proof, he can not be held liable for an illegal act done under color of official authority derived from the Board of Control. State agents and Boards have no right to exemption from liability for trespass, but the proof of some wrongful or illegal act should be made before liability can attach. The person who committed the illegal act, must be brought before the court; or the person or official who authorized the act to be done, must be cited.

Neither one nor the other has been done in this case.

The judge a quo came to the conclusion that the plaintiff had failed to make out a case, and we concur-in his .cninion.

Jundgment affirmed.

Rehearing refused.


author: Nicholls, C. J. Nicholls, O. J.

text:
    No. 13,777.
    Woodley Watson vs. Clara Barber, Administratrix.
    Syllabus.
    Where the plaintiff sues upon an express contract upon which action accrued annually subject to the prescription of three years, a failure to institute the action for its enforcement within the period of prescription, bars the action, notwithstanding the fact that it was not brought by reason of an expectation and hope by the creditor that the debtor would malee testamentary dispositions in his favor sufficient to cover the claim. Verbal expressions of the debtor indicative merely of his intention to make a legacy in favor of the creditor, but not rising to the character of an agreement to postpone payment of the claim, does not suspend prescription. See Adams vs. Succession of Mills, 49 Ann. 775 ; Succession of Gaines, 45 Ann. 1434.
    APPEAL from the Sixth Judicial District, Parish of Morehouse-Hudson, J., ad hoc.

      Andrew Augustus Gunby, for Plaintiff, Appellant.

      Madison & Madison, for Defendant, Appellee.
   The opinion of the court was delivered by

Nicholls, C. J.

(Original decree of this court set aside bn rehearing.)

Statement of ti-ie Case.

Nicholls, O. J. The plaintiff asks judgment against the Succession of Thomas Barber for the sum of two thousand eight hundred and fifty dollars,with legal interest. His demand, is based upon allegations that for a number of years, and particularly from the year 1889, the said Thomas Barber had considerable property and business interest in the parish of Morehouse; that in the year 1889,Barber employed him to keep his books, accounts, and make all settlements and calculations for him, ship and settle for all cottons, manage his gin and grist mill, which did business, not only for Barber individually, but for the public, and also his mercantile business, and keep all books and to manage generally all of his property interests, and ‘farming operations; and agreed to pay him for his services a salary of three hundred ($300) dollars per annum for the year 1889, and each subsequent year; and paid him said salary for the year 1889; that his employment under said contract and agreement continued during the year 1890 and subsequent years, until the death of Barber, in July, 1899, and petitioner faithfully performed all of said services required up to said time, and that Barber was owing him therefor, under said contract, the sum of twenty-eight hundred and fifty ($2850) dollars, after deducting the sum of three hundred ($300) dollars paid in 1889. That Barber, instead of paying his salary as it fell due, agreed with petitioner in the year 1890, that instead of payment of his salary each year he would postpone payment thereof from year to year, and would bequeath to petitioner a large portion, if not all, of his property, which would be ample to satisfy the amount due him for his services and leave him over and above a good legacy. That petitioner continued to perform said services and did not demand payment and settlement on account of the understanding with said Barber and the belief and expectation that Barber would compensate and pay him in said manner, payment of same having been deferred and postponed as aforesaid.- That Barber, during his last illness, made an effort to carry out his said agreement, and sent for a member of the law firm of Madison & Madison, of Morehouse parish, and at the same time for petitioner, for the purpose of making his last will and testament with petitioner, but died before said attorney and petitioner could reach his bedside, and before Barber had made his last will and testament, without having in any manner paid petitioner the amount due. That, under said agreement, contract and understanding, petitioner was now entitled to recover the sum of three hundred dollars per year from January 1st, 1889, to July 18th, 1899, the date of death of Barber, less the sum of three hundred dollars paid in 1889, leaving said sum of twenty-eight hundred and fifty dollars due petitioner.

In the event the court should decide that there was no contract, as alleged, petitioner averred that during said years he faithfully performed all of said services continuously for Barber, and that they were fully worth the sum of ■ twenty-eight hundred and fifty dollars, from January 1st, 1890, to the death of Barber; that Barber was old and illiterate, and said services performed by petitioner for him were valuable and indispensable, and Barber could not have conducted and managed his business had he not received the benefit of the services of petitionr. That petitioner performed said services under the express and positive promise that he would bequeath him a large portion of his property, and Barber, being without children or collateral kindred, so far as petitioner knew, petitioner confidently believed and expected that Barber would be able to and would without fail cary out and fulfill his promise and agreement, said promise and agreement having been made by Barber to induce petitioner to perform said services, and in good faith. That Barber, having failed to compensate petitioner for said services and to fulfill in any way his promise and agreement, in faith of which petitioner performed said services, petitioner was entitled to recover said sum as a rasonable and just compensation and value for said services. That demand had been made on Clara Barber, administratrix, to allow said claim as a just claim against said succession, but she has refused to do so.

Defendant filed an exception of the prescription of one, three and five years in. bar of plaintiff’s action, and under reservation of same answered. After pleading the general issue, • she averred that plaintiff was a foster son of Thomas Barber, who raised him from an infant and supported and maintained him and his family up to the time of his (Barber’s) death; that plaintiff was forty or fifty years old, was the father of a large family, had never been successful, but always in debí, always prodigal and extravagant; that both he and his family had always been pensioners on Barber’s charity and received liberally of his bounty; that, notwithstanding these facts, Barber from time to time made valuable donations to plaintiff, especially the donation of the gin property and improvements, worth at least fifteen hundred ($1500) dollars, and that all these things considered, plaintiff’s demands showed the height of ingratitude and avarice, and had no foundation in fact, law or good conscience. That, instead of her being indebted unto plaintiff, he was largely indebted unto her as administratrix of Thomas Barber’s Succession; and, assuming the position of plaintiff in reconvention, she averred:

That Woodley Watson, plaintiff, was justly and legally indebted unto her as administratrix of the Succession of Thomas Barber in and for the full sum and amount of eight hundred and forty-nine dollars and ninety-nine cents ($849.99), at five per cent, interest on $527.49 thereof, from the — day of-, 189 — , till paid, and two per cent, interest on $422.50 thereof from February 3rd, 1896, till paid, for this, to-wit: That Woodley Watson was indebted unto the Bastrop Mercantile Company, Limited, and to Wolff & Silbernagel, in the sum and amounts as set out in and shown in suits Nos.-and-, on the docket of this court; that, through the importunities of the said Watson, Barber assumed said debts and gave his notes or note therefor; that said notes, when paid, amounted to, including interest, said sum of $527.49, which the said Barber and she, as the administratrix of his succession, had paid; and that though amicable demand had been repeatedly made, no part of said sum had ever been refunded by said Watson; that the residue of said total amount of $849.99 was evidenced by a certain mortgage note, dated February 3rd, 1896, and due January 1st, 1901, and bearing two per cent, interest from its date till paid, and payable to the order of Thomas Barber and signed by Woodley Watson.

She prayed that plaintiff’s demand be rejected, for judgment in reconvention, with the right reserved to proceed on the mortgage note when it matured.

Plaintiff excepted to the reconventional demand on the ground that both plaintiff and defendant resided in the same parish, and the reconventional demand did not grow out of nor was it necessarily connected with the demands set up by plaintiff.

In view of the premises plaintiff prayed that the said reconventional demand be stricken out and rejected, and for general relief.

The court rendered judgment against the paintiff, and he appealed.

Opinion.

The plaintiff sues upon an alleged verbal contract with Thomas Barber, for services to be rendered by him to Thomas Barber at a fixed salary of three hundred dollars per year. The contract is averred to have been made in 1889 and services rendered under it until the death of Barber in 1899. Annexed to plaintiff’s petition is an account in which a charge or claim is made for three hundred dollars per year for each of the intervening years. The defendant denies the existence of any claim and asserts that whatever services were rendered were gratuitous and such as would naturally be performed without pay by one who had been taken into the family of another and reared by him as a member practically of his family. She maintains that Barber, by reason of such relations, extended to the plaintiff kindnesses and benefits that would more than requite him for anything which he had done. She pleads the prescription of one, two, three and five years. She further claims that during the period for which the plaintiff claims a salary he had come under a large acknowledged indebtedness to Barber, for a part of which she claimed judgment in reeonvention. Defendant has asked no amendment of the judgment.

A branch of this case will be found reported in 52 Ann. 957 (Succession of Barber). Plaintiff seeks to ward off the effect of the prescription pleaded, by urging that his services were continuous, and he did not exact payment because he had been led to believe that he would be remunerated for his services in the will of Barber. Pie evidently relies upon the line of decisions commencing with the Succession of Fowler. 7 Ann. 778, and extending down to Succession of McNamara, 48 Ann. 45. These decisions were referred to and cited in Adams vs. The Succession of Mills, 49 Ann. 779, in which attention was called to the change which had been made in the law of prescription by the present Article 2278 of the Civil Code, and the statute on which the change iu that article was based. The plaintiff does not sue upon a quantum, meruit or an implied contract, but upon an express contract with annual stops. In the Adams case, in the 49th Annual, referring to plaintiff’s claim, we said: “It is not claimed that either prior to or as the services were being rendered there was any agreement or understanding that plaintiff’s services were to be compensated, still less that the value or manner or time of payment thereof had been fixed. Pie relies upon the vaguest kind of declarations of Mrs. Mills after the alleged services were rendered that she was under obligations to him which she would remember and recognize in her will. * . * * The parole evidence tendered by plaintiff was not to establish a contract which, by its special terms at its inception, was of a character such as to withdraw it fromthe prescription ordinarily applicable to contracts of that kind. What he attempted to do was to prove that services, which as to their payment would be prescribed by three years, had been taken out of such prescription and thrown under that of five or ten years by a subsequent promise or acknowledgment.”

These remarks, to some extent, find application here. Viewing'plaintiff’s claim as arising under an express contract his right of action accrued at the end of each year and would be prescribed accordingly. The demand of the plaintiff for remuneration for services rendered prior to the three years preceding the death of Thomas Barber are prescribed, and are so decreed to be. Plaintiff does not pretend that there was any agreement between himself and Barber that the term of payment of his claim should be extended to the period of the latter’s death, or that the consideration originally fixed should be replaced by a promise of provision of some kind for the plaintiff through future testamentary disposition in his favor. The utmost that is claimed is that in consequence of independent declarations of Barber that he intended to make such a disposition, giving rise to a hope in plaintiff that it would be carried into execution, he had postponed taking any action towards obtaining payment for fear, as he said, that it would make him mad. Expressions by Barber expressive of mere intent did not make an obligation (C. CV 1813-1814). We do not think that anything which Barber may have said on this subject rose to the character of an agreement to change the terms of an express contract. The plaintiff’s contention that there has been a continuity in his services which affects the legal situation in his favor through that fact, is not well grounded. In the first place, he was replaced for a time by Barber’s stepdaughter, and in the next place, though the services might not have been broken as a fact, yet they must be taken under the pleadings, to have been rendered under separate, distinct annual contracts. We recognized in Alba vs. Moriarty the princiiffe of reconduction of a contract for services, but that doctrine is predicated upon the presumption of continuance of existing conditions. In this case the situation changed very materially after 1889. Plaintiff continued his services, but they were much less than they were at tha t time. Defendant’s contention that the services were gratuitous ah initio is not, we think, sustainable. We think there was an original agreement in 1889 to pay the plaintiff a salary of three hundred dollars, but we find no direct evidence of a renewal of that contract, but plaintiff continued to do service ,and it may be presumed in the absence of counter proof that there was an agreement of some kind for remuneration to some extent, at least up to the time that he was replaced for a while by defendant’s daughter. There is no doubt that while the plaintiff was performing the services for which he claims remuneration he became indebted, in different ways to Barber, for which indebtedness he executed his notes. From that fact- defendant reasons to the nonexistence of any counter claim by Watson against Barber. Had there been such a claim she contends the parties would have offset one of the debts against the other. That, as a mere matter of presumption, would have very considerable force. Such a presumption was acted upon adversely to the plaintiff in Wood vs. McCranie, in 21 Ann. 558; so, also, it was invoked and used to some extent in Strahorn-Evans Commission Company vs. Bryan, 104 La. R. 664. The presumption, however, yields to positive evidence. Although by Article 2208 of the Civil Code, compensation is declared to take place of course by the mere operation of law, even unknown to the debtors, that is not, as between the parties, a forced legal result. The two debts may continue outstanding as between the parties if such be their agreement and will. Article 313 of the Code of Practice declares that: “If defendant suffer judgment in the original suit without pleading such compensation as he may have to oppose as provided above, he shall not on that account lose his right of action against the plaintiff to recover whatever amount such plaintiff owes to him, but he must bring his action before the court within whose jurisdiction the plaintiff has been domiciled.” We can see a reason in this particular case why the parties should have preferred not to have the two debts extinguished by compensation. Watson was in debt to several persons, among others to Thomas Barber, whose relations with him were such as to incline him to use the existence of that debt as a protection to him as against the other creditors by a mortgage on his property, or a transfer of the same with understood right of redemption, and this protection was in fact given to him by Barber. This is the extent of what was meant when Watson says the notes, etc., were given for his “protection.” It can not be pretended that the indebtedness and notes were simulated.

The plaintiff, instead of waiting until the defendant had sued him upon his notes and then pleading in compensation, has taken the initiative and brought suit directly upon his own alleged claims declaring upon an express contract. The defendant, instead of pleading compensation, has filed a plea in reconvention. The court has said nothing about the latter demand. The defendant has not appealed nor asked any amendment.

The court, we think, has offset the two demands which the parties have presented against each other. It did not pass on the plea of prescription. We think the plaintiff had a claim to some extent against the defendant, subject to a settlement of the claim which the succession had against him. We think he has no reason to complain of the judgment as rendered. If there be error, it' is certainly not against him. The judgment appealed from is affirmed, the right of parties in relation to plaintiff’s mortgage note (which, though referred to in the pleadings and evidence, was not declared upon by the defendant in reeonvention) being expressly reserved.’

On Rehearing.

Nicholls, O. J.

A rehearing was granted in this case for the reason that our attention was called to the fact, which the court had overlooked, that the plaintiff had excepted to the reconvenional demand filed by the defendant, on the ground that it was not connected with or incidental to the main demand, and that exception had been maintained and the reconventional demand was dismissed. The mistake arose from the fact that the action of the District Court on that subject appeared only in the stenographer’s note of evidence and not in the minutes, and that, notwithstanding this entry, the same notes showed later the introduction' of evidence, over repeated objections of plaintiff, upon the matters which had been made the subject of the reconvention, and they were also very fully discussed in the argument of the case. Acting upon the assumption that the District Court had passed upon the reconventional demand, we construed the judgment rendered by it to have held the demands of the plaintiff and those of the defendant to have offset each other, and as the defendant did not appeal and asked no amendment of judgment, we affirmed the judgment, remarking, however, that if there was error therein, it was not to the prejudice of the plaintiff. We recognized, however, that the services which plaintiff had rendered were not gratuitous, and that he was entitled to remuneration to some extent. We did not attempt, under our view of the situation, to fix any amount for the same. ■ We are satisfied that the court did not act upon the reconvention, notwithstanding the fact of the introduction of evidence upon the claims. Plaintiff insists that-the court must have “reconsidered” its action dismissing the reconvention, but there is nothing in the record to support the argument other than the fact itself of the introduction of the testimony over plaintiff’s objections. There is some inconsistency in plaintiff’s insisting that the reconvention was before the court, in view of the fact that he maintained throughout (shown by his pleadings and exceptions) that it could not be legally considered.

We think the evidence was introduced by the defendant, not for the purpose of obtaining a judgment upon the reconventional demand, but by showing the existence of the claims advanced therein to argue from that fact the great want of probability of the coexistence with them of any claims of the plaintiff against Barber. For that particular purpose and to that extent the evidence was relevant, and it was for that purpose undoubtedly offered and permitted to be introduced.

The error which we fell into in regard to this matter necessitated a reexamination of the case. The defendant has urged upon us to reject plaintiff’s demand entirely upon this reexamination.

We adhere to the conclusion announced in our original opinion, that the plaintiff is entitled to some remuneration, notwithstanding the fact' of the close relations which existed between him and Barber from the former’s early childhood. The latter himself recognized that when the plaintiff reached his majority and had special responsibilities of his own thrown upon him, he was entitled to compensation for services which took up so great a portion of his time as did those he was then rendering. He therefore agreed to pay him three hundred dollars a year. At that time and for some time after Barber owned a store, of which Watson had charge; he also had a couple of small places, calling for some special clerical and other work. Matters did not remain in that condition. Watson himself bought the store from Barber, and conducted it on his own account and his services afterwards more nearly approached those which would be expected from a member of Barber’s family than they had. As there was, however, no evidence of any expressed alteration in the understanding that he should be paid,' we thought that matters should not be placed upon a changed footing in that respect; but we none the less recognized the fact that the original agreed salary of three hundred dollars a year could not be taken as a continuing standard of the value of the plaintiff’s services, in view of their extent having been so greatly reduced. Watson himself testifies that when he asked Barber for remuneration upon that valuation, he objected and became violently angry, so much so that he discontinued his services altogether, substituting his stepdaughter in plaintiff’s place.' We think it quite likely that the plaintiff had some expectation, and, perhaps, a reasonable expectation, that Barber might provide for him in his will, and that but for that expectation he might not have been as willing as he was to continue his services, but that view of the matter does not control the legal situation at all. The plaintiff urges that there is very strong evidence in the record as to the extent and value of his services up to the death of Barber. We do not give the testimony he refers to the same probative force which he does.

The witnesses did not pretend to have any personal knowledge of the details of plaintiff’s duties and services. Their knowledge was of a very general and indefinite character and referred besides to a great extent to services rendered.years back. Plaintiff received from Barber up to the very moment of his death constant acts of kindness, and remuneration for his services has not been considered from the same rigid standpoint as it would independently of that fact and for services rendered by one stranger to another (Succession of Turnbull, 34 Annual, 890). It is difficult to say for what amount plaintiff should have judgment,but after the best consideration we can give to the matter, we think he would be fully compensated by a judgment of two hundred dollars.

For the reasons assigned it is ordered, adjudged and decreed that our 'original decree herein be and the same is set aside, and it is now ordered and adjudged that plaintiff, Woodley Watson, do have and recover judgment against defendant, the Succession of Thomas Barber, for the sum of two hundred dollars, with the costs in both courts'.