author: MOUTON, J. MOUTON, J.

text:
    No. 379
    First Circuit
    ASSUMPTION ICE AND COLD STORAGE CO. v. JOHN DALTON CO., LTD. FOSTER, BOATNER & FOSTER, INTERVENERS
    (January 9, 1929. Opinion and Decree.)
    (March 6, 1929. Rehearing Refused.)
    (April 22, 1929. Writ of Certiorari and Review denied by Supreme Court.)

      C. A. Blanchard, of Morgan City, attorney for plaintiff, appellee.
    C. J. Boatner, of Franklin, attorney for intervener, appellant.
   MOUTON, J.

An undivided one-fourteenth interest in a plantation containing 450 acres was seized by plaintiff by garnishment process in the hands of W. Prescott Foster, who was made garnishee.

The succession of Murphy J. Foster, through Prescott Foster, its administrator, Prescott Foster for himself, individually, and Charles J. Boatner intervened in the case by way of third opposition, claiming a lien on the property garnished for attorney’s fees for $430.30, to be paid by preference from the proceeds to be' realized through the sale of the (property seized.

Their claim was dismissed and they have appealed.

Plaintiff, seizing creditor, urges the prescription of ten and three years; also the pleas of estoppel and waiver against the claim of opponents; and, in the alternative, that if any recovery be allowed, that the amount demanded be reduced. The proof shows that in 1909 Murphy J. Foster, now deceased, 'obtained a judgment in favor of John Dalton Company, defendant herein, and against H. C. Tellott, for the sum of $563.45, upon which he allowed 25 per cent attorney’s fees, one-third of which was subsequently acquired by Prescott Foster, and the other third by Charles J. Boatner, upon these three attorneys forming a law firm at Franklin, La. That later, in 1918, after the association of these attorneys as partners, the Dalton Company, defendant, acknowledged in writing to be indebted to said firm in the additional sum of $138.50.

It is shown that in 1916, the judgment which Attorney Murphy J. Foster had obtained for the Dalton Company was executed against H. C. Tellott, and that the one-fourteenth of said plantation then owned by Tellott, was adjudicated to W. Prescott Foster, as agent for John Dalton Company, defendant. It is shown that Prescott Foster was to hold the property so adjudicated in his capacity of agent for John Dalton Company until such time as it could be sold, with the understanding that the amount realized by its sale would be applied first to" the payment of the judgment of John Dalton Company against H. C. Tellott with interest, costs and attorney’s fees, and if a surplus remained, this would go to the payment of Tellott’s other judgment creditors. Counsel for plaintiff says, in answer to the claim of opponents, that the judgment of John Dalton Company against Tellott which carried the attorney’s fees was obtained in 1909, was never revived, and is now prescribed; that the attorney’s fees are prescribed with it. .He pleads the prescription of ten years against this judgment and the attorney’s fees. He also pleads the prescription of three years against the attorney’s fees.

Counsel contends that plaintiff company, a third party, has the legal right to urge these pleas of prescription. He relies mainly on Article 3466, C. C., which permits creditors and all other persons in interest to plead prescription in extinguishment of an obligation, though the person bound by such obligation, should renounce such right of prescription. It is clear from the language used in that article that the person bound by the obligation must have the right to urge the prescription, because if he has not that right, there is no prescription available in his behalf, and that he cannot renounce that which does not exist. The creditor can not have a greater right than the debtor or obligor, Lemmon vs. Clark, 36 La. Ann. 744, and if the latter cannot plead prescription the creditor is in no better situation. Here, Prescott Foster held the property as the agent of the John Dalton Company with the understanding that the proceeds realized from its sale would be distributed in the manner above stated. Foster, it is obvious, could not have acquired title to this property during the existence of his agency, which, as far as the record discloses, was still existing when the property was seized in his hands as garnishee. This rule of law should work both ways, and for the same reason, John Dalton Company was not in a position, if so inclined, in which it could be permitted to interpose the plea of prescription of either three or ten years against the claim of Prescott Foster for the professional services rendered to the John Dalton Company. '

In the ease of Wilson vs. Bannen, 1 Rob. 566, a lot of nails, consisting of one hundred and five kegs, was left in the hands of the owners of a ship or their agents, as a pledge for the payment of the freight due on the cargo. The court, basing its conclusion on this state of facts, said that no prescription could run because the pledge was a standing acknowledgment of indebtedness on the part of defendant. In the instant case, as the thing placed by Dalton in the possession of Foster was an immovable, there could be no pledge created by the contract, but nevertheless it remained in his hands as a “standing acknowledgment” of the debt which was due by the Dalton Company, his principal. The relation so created and existing at the time of the garnishment constituted a constant acknowledgment of the adverse rights of opponents, thus interrupting or precluding the course of prescription against their claim for attorney’s fees. C. C. 3520; Wilson vs. Bannen, 1 Rob. 556. Plaintiff, a creditor though a third person has no greater rights than Dalton Company, obligor, and is not entitled to the prescriptions urged in its defense.

The third opponents, however, have failed to allege or prove that the judgment, or their claim for attorney’s fees had ever been registered or recorded in the parish where the property in question is situated. The lien or privilege claimed is asserted against an undivided portion of a plantation and its improvements, which constitute an immovable.

The Constitution of 1898 was in force when the judgment stipulating the attorney’s fees was obtained in 1909; also, when it was executed in 1916 and, the adjudication of the property was made to Prescott Foster. It was in existence when the acknowledgment of $130.50 for subsequent attorney’s fees was made by the Dalton Company with the understanding that it would be likewise paid when the proceeds would be realized by Foster from the expected sale of the property. Article 186 of the Constitution of 1898, then in force, provides that all mortgages and privileges on immovable property shall not affect third persons, unless recorded or registered in the parish where the property is situated. There is a similar provision in the Constitution of 1913, and in the present Constitution of 1921. In order to affect third persons C. C., arts. 3273 and 3274 also demand this essential requirement of registry. The party claiming a privilege must establish it by proper and legal proof, which was not made by opponents, as they did not allege nor prove that their claim for attorney’s fees had been recorded or registered as the law requires. Their claim for the recognition of a lien on the property garnished was therefore properly dismissed.

The judgment is, for the foregoing reasons, affirmed with costs.

ON APPLICATION FOR A REHEARING.

MOUTON, J.

In his answer to the garnishment process, Foster, garnishee, claimed a privilege on the plantation seized for professional services as attorneys, rendered by third opponents to Dalton Company, defendant.

The third opponents and interveners contend that plaintiff having failed to traverse the answer of the garnishee, it cannot be divided, must be taken as a whole, and for that reason, the lien claimed by third opponents on the undivided interest in the plantation, is binding on plaintiff company. This is the general rule of law which is founded on Article 356 C. P., which says: That the confessions of the party interrogated, if plaintiff wishes to “avail” himself thereof, cannot be divided, but must be “taken entire.”

In the instant case third opponents came by way of intervention in the case, and maimed their privilege for professional services and for payment from the proceeds of sale of the property by preference or priority. Proof was offered by plaintiff and garnishee on that issue which was fully threashed out on the trial of the third opposition. As plaintiff did not “avail” itself of the confessions of the garnishee, even if third opponents be correct in their contention that such confessions should be taken as a whole, the rule invoked by’ them has no application herein. Such being the situation, they should have alleged or at least proved that their claim for attorney’s fees had been registered in the parish where the land is situated as the law requires.

Having failed to make the necessary proof they were not entitled to a recognition of the lien claimed on the property seized, as was held in our original opinion.

Rehearing refused.


source: Caselaw Access Project

author: MOUTON, J.

license: Public Domain

text:
    No. 423
    First Circuit
    PITCHER v. ERWIN
    (February 13, 1929. Opinion and Decree.)
    (April 13, 1929. Rehearing Refused.)
    Rownd and Warner, of Hammond, attorneys for plaintiff, appellee.
    J. J. Jackson, of Hammond, attorney for defendant, appellant.
   MOUTON, J.

Pitcher, plaintiff, was driving a Whippet auto south from Hammond and Irwin, defendant, a Chrysler north towards Hammond. The autos collided on a concrete bridge a few miles south of Hammond.'

Plaintiff is asking damages for injuries to his car, and so is defendant for injuries to his auto. Plaintiff recovered judgment for two hundred and sixty-five dollars ($265.00), with legal interest; the demand of defendant was denied.

Defendant has appealed.

Plaintiff got on the bridge first, and was then traveling at about thirty (30) miles an hour, not an excessive speed. He was driving on the west side of the bridge, his right hand side, and there is no testimony or fact to indicate that he deflected from that course, at any time, before the collision, or even after. He says, he first saw defendant when he got on the bridge, or was about getting on it, and that for the purpose of allowing sufficient room for the passage of defendant’s car, he pressed his car to his right, westward, close to the side of the bridge. The fact is, that the side of the bridge was scraped by his auto, a physical fact confirmatory of plaintiff’s statement. The exact spot where the impact occurred was approximately five or six feet north of the south end of the bridge.

Blades, a farmer of that section, says he was working in his field, situated a couple of hundred yards south of the bridge. He was then a few feet from the curbing of the highway on which defendant was coming from New Orleans. He says defendant was traveling at a very high speed, faster than he had ever noticed on that highway where over a hundred cars pass daily. His testimony is that defendant was flying. Such estimates are. to be taken with caution as it is almost impossible by looking at a ca*1 passing to estimate accurately the celeritj at which it is moving. As Blades lived near a highway where there was so much traffic, and as he had himself driven autos, it is reasonable to conclude that defendant was. going, however, at an unusual speed. Blades testified that attracted as he was by the rapidity at which defendant’s car was going, he kept his eye on it as it passed him going towards the bridge. He says when defendant’s car neared the bridge, he saw when it turned to the left, and ran into the other ear. He was one of the first, if not the first, to reach the scene of the accident. He examined the tracks made on the highway by defendant’s car, and says that they deviated to the northwest. These marks on the roadway showed the sudden turning to the left of defendant’s car, and have the effect of corroborating Blades’ statement that he saw when the car deflected its course to the left from the right side where defendant was driving.

Parker, another witness for plaintiff, testifies that on the morning of the accident he was driving from New Orleans towards Hammond, which was the direction defendant was going. This witness says defendant was traveling at a high rate of speed as it appeared to him. He says when defendant passed ahead of him the dust flew up so thick he had to slow down to let it settle that he might be able to see ahead of his car. He estimates he was traveling at about twenty (20) miles an hour, and that defendant was going twice as fast. Again, we say, that such estimates of speed cannot be made with accuracy, but when a car passes ahead of another going in the same direction, an estimate that it is going twice as fast as the car left behind, though not dependable to fix the rate of speed with certainty, may, however, be accepted as an approximate estimate of speed.

The testimony of Blades and Parker in reference to the excessive speed at which defendant was traveling is also supported by that of plaintiff on this subject.

Other witnesses, besides Blades and Parker, said they had examined the tracks of defendant’s car which showed that it had gone to his left or westward when it neared the bridge. The plaintiff is positive that defendant suddenly swerved his car to his left and ran into his car inflicting the damages of which he complains. Plaintiff says defendant ran into the left side of his car, and so suddenly that it was impossible for him to change his course and avoid the impact.

The proof is that the left front door of the plaintiff’s car was completely torn off, and the running board was stripped off on that side, the rear of the body being loosened from the frame.

All of the foregoing testimony which covers the vital issue in the case, makes it quite clear that defendant immediately before the accident, was driving at an excessive rate of speed, and in which there was no slacking, according to the testimony of the plaintiff, whose evidence was not contradicted in that respect by the facts of the case, or by the testimony of any of the witnesses, except defendant.

Even if it can he doubted that defendant was at fault in driving at a speed not commensurate with safety on approaching a bridge which the record shows was narrower than the highway, it is impossible, however, as appears from the record, to escape the conclusion that he suddenly turned to his left as he reached the bridge or got on it, and smashed into the auto of the plaintiff. The physical facts, taken in connection with the testimonial proof irresistibly lead to this finding of fact, no other is possible.

The defendant testifying on his own behalf says that plaintiff’s car hit the culvert of the bridge, and that the impact which resulted from his driving into the west wall of the bridge, threw his car on his Chrysler, thus causing the damage. The proof is that neither the right front bumper nor the right front fender of plaintiff’s car showed any marks, injury or abrasions.

If plaintiff had run in the west wall of the bridge as stated by defendant, the front part of his car on the right side would have shown the result of such an impact, so powerful, according to the defendant, that plaintiff’s auto was thrown on his car, thus inflicting the damages which he claims in reconvention.

The cause of the accident which defendant contends resulted in the damage is not sustained - by the evidence in the record, but which supports the contention of the plaintiff, that defendant was at fault when the collision occurred. The lower court so found and in which we find no reversible error.

The car of the plaintiff was worth about three hundred dollars ($300.00) before the accident, was practically demolished, leaving a value of ten dollars ($10.00) which was confined to the motor. He got judgment for two hundred and sixty-five dollars ($265.00), which is not excessive.'


text:
    No. 397
    First Circuit
    HARDEE v. NEVERS
    (February 13, 1929. Opinion and Decree.)
    (April 13, 1929. Rehearing Refused.)
    L. V. Cooley, Jr., of Slidell, attorney for plaintiff, appellant.
    Ott & Rich, of Bogalusa, attorneys for defendant, appellee.
   MOUTON, J.

Plaintiff was driving a Chrysler auto south from Pearl River towards Slidell from which place defendant was driving his Studebaker car, northward to Bogalusa. The autos were therefore traveling in opposite directions. A collision occurred between the two cars at or near a concrete bridge about one mile south of Pearl River Station from which plaintiff was coming.

Plaintiff alleges that his ear was completely wrecked as a result of the collision and demands damages against defendant. The case was tried by a jury which rendered a verdict rejecting the demand. The district judge rendered judgment approving the verdict.

Plaintiff appeals.

The accident happened in the daytime. The defendant was returning to Bogalusa from a fishing trip, with Mrs. Gregory, her husband, defendant’s daughter, another young lady and Claude Dunlap. These parties were returning to Bogalusa in three cars; a Buick, Studebaker and Ford coupe. Mrs. Gregory was driving the Buick ahead of the other cars, defendant was immediately in the rear of her car, and Dunlap was at some distance behind the Studebaker, defendant’s car. .

Plaintiff says defendant suddenly swung his car from behind the Buick Mrs. Gregory was driving and ran into his car at the time the cars were about meeting at the bridge.

J. Felthem, then a stranger to plaintiff, who was coming in a car in the rear of plaintiff from Pearl River Station, says that all of a sudden defendant’s car shot out from behind the other car, struck plaintiff’s car, wrecking it, and injuring' his wife. He says plaintiff “was just at the bridge at that time.”

Mrs. Hardee, wife of the plaintiff, who was riding on the front seat of the car her husband was driving, gives practically the same account of the accident as was given by Mr. Felthem, and said the collision occurred at the bridge, giving as the reason for this statement, that when she got out of her car, she had just enough room to get on to the curbing of the bridge.

Defendant testifies that when the collision occurred he had stopped his car and was about ten or twelve feet from the bridge on the south side or Slidell side.

Mrs. Gregory, defendant’s witness, says that plaintiff passed her car just as she had cleared the bridge, when she was about four or five feet on the other side, which the record shows was on the north side.

It appears from the testimony of all the witnesses that plaintiff was, at the time of the collision, driving on the right side of the road going south, and it is not disputed that he had the right to be there.

The cause of the accident is explained by the testimony of Mrs. Gregory and by that of defendant. Mrs. Gregory explains that when she saw plaintiff coming along on the other side of the bridge, she thought they would meet on the bridge, so she slowed down her car, coming practically to a stop, then changed her mind, and went across, passing plaintiff at about five feet beyond, as heretofore stated. The defendant in giving his version of how the accident happened, says that as he got to the bridge Mrs. Gregory almost stopped her car, that as he was right behind her, “to keep from hitting her in the back,” he turned his car to the left, and that then Mrs. Gregory started on her way across the bridge.

He says that when he turned to his left to avoid striking Mrs. Gregory’s car, he was then about a car’s length behind, and which he fixes at about eight feet.

Defendant says “there was very little time between the time I turned out and when we ran together.” He says when Mrs. Gregory slowed her car for the bridge, “I had never seen Hardee coming at that time;” and explains that he saw him when his car and Mrs. Gregory’s auto crossed each other on the Pearl River side of the bridge.

It is, therefore, manifest that when defendant suddenly swung . his car to his left, and in the pathway of plaintiff’s auto, he was in close proximity to plaintiff’s car. He had not seen plaintiff, and if he had, before turning to his left, it is extremely doubtful that plaintiff saw his car as he was directly behind Mrs. Gregory and it is certain that plaintiff, if he saw defendant, could not have had the slightest idea that he would turn to his left.

In Courts of Appeal Rep., vol 1, page 280, the court said:

“It is the duty of the chauffeur driving behind an auto to so regulate his distance and his speed as not to collide with a car in front of him in case the latter comes to a stop.” See to the same effect Roberts vs. Eason, 6 La. App. 703.

Mrs. Gregory was traveling on her way to Bogalusa at about twenty-five miles an hour. Defendant’s car, the evidence shows, was about eight feet behind Mrs. Gregory’s car when they reached the bridge, and that he suddenly turned to his left to avoid crashing into the Buick. It is clear that defendant had not properly “regulated his distance” from the ear ahead of him, nor his speed, and that he was flagrantly at fault in that respect. If he had turned to his right, which he should have done, no collision could have occurred, as plaintiff would have continued to his right along the right side of the roadway. In the emergency, which confronted defendant, having, we presume, no time to think, he turned to his left directly in front of plaintiff’s car. This situation was created entirely by the gross fault of defendant, and as he was on the wrong side of the road when the impact came, he must be held responsible, unless he can escape on his plea of the last clear chance.

Mrs. Gregory says, “right after I passed the bridge plaintiff crossed me, and I heard the crash caused by the collision.” This part of her testimony shows with the other facts to which we have referred on this subject how close plaintiff’s car was to that of defendant at the time of the accident. As such was the situation of the two ears, it is obvious, that plaintiff, being unexpectedly imperiled by the sudden appearance of defendant’s car in front of him, could not have been expected to turn his car from the right side of the road where he was, to the left side and thus pass alongside the car of defendant whose front wheels were on the west side of the road, and his rear tires near the center line of the roadway. Plaintiff says, as he approached the bridge he had slowed up and was going at about twenty miles an hour. Let us say he was then going at thirty, which was not an excessive or illegal speed, it would have been almost physically impossible for him so situated and surprised as he must have been by the presence of the car suddenly darting across his passage, to have performed the feat of successfully passing defendant’s car by swerving his car to his left side of the road.

In Collier vs. Frank Varino & Co. et al., 153 La. 636, 96 So. 500, where a pedestrian suddenly stepped in front of the driver of a truck, the court said the driver could not anticipate that the party would step across his way, and that though he was driving at an excessive speed, the stepping in front of the car by the party killed, was the proximate cause of the accident, as the driver was deprived of the last clear chance of preventing the accident. This rule applies with peculiar force here, as the plaintiff could certainly not have anticipated that his passage would be so suddenly and unexpectedly blocked by defendant’s car, and under such circumstances, it must be held that the proximate cause of the accident was due to the action of defendant.

In passing on a question involving the application of the last clear chance rule, the court in Tyer vs. Gulf C. & S. Ry. Co., 143 La. 177, 78 So. 438, said it must clearly appear that the party after seeing the danger, could by the exercise of ordinary care have avoided the danger, or that by the exercise of ordinary care could have seen the danger in time to avoid the accident. Ordinary care, says the court in that case, is not a constant, but a varying condition, dependent upon the circumstances of each particular case.

It is evident in this case that plaintiff by the exercise of ordinary care, considering the “conditions” then existing, could not have seen the danger in time to have avoided the collision', and after seeing it could not have avoided it by the exercise of ordinary care. The facts and circumstances of this case as we have herein-above related show that under the doctrine of the last clear chance defendant can find neither refuge or relief from the claim of plaintiff.

Defendant contends that even if plaintiff is entitled to judgment he cannot recover in this suit because he has failed to prove his damages as the law required.

Plaintiff was asked if after the automobile had been wrecked as described in the suit, what became of it. In his petition plaintiff had alleged that his auto had been completely wrecked and demolished beyond repair. If it was wrecked as described in plaintiff’s suit, it must certainly have been almost a total loss.

He said the value of his auto was one thousand one hundred seventy-six 80/100 dollars '($1176.80), and that the Chambers people from whom he bought another auto, allowed him six hundred dollars ($600.00) for the wrecked car. As he received six hundred dollars ($600.00) on his wrecked car, he claims the sum of five hundred and seventy-six dollars ($576.00) for the balance of its value with legal interest from judicial demand. We think, the evidence is sufficiently certain to allow judgment for plaintiff for the amount claimed.

Counsel for defendant refers to the salutary rule which the appellate courts have invariably observed not to lightly disturb the findings of a jury and the 'trial judge on issues of fact. We have always endeavored to apply that rule in cases of this character, but here, after a careful and patient consideration of all the facts and circumstances of the case, we are constrained to reverse the verdict of the jury and the judgment confirming it being manifestly erroneous.

It is therefore ordered, adjudged, and decreed that the verdict and judgment appealed from be avoided, annulled and reversed; and, it is further ordered and decreed that plaintiff have judgment against defendant for the sum of five hundred and seventy-six dollars ($576.00), with legal interest thereon from judicial demand until paid with cost of court.


author: ODOM, J.

text:
    No. 3165
    Second Circuit
    CRAIG’S HEIRS v. FROST LUMBER INDUSTRIES, INC.
    (March 12, 1929. Opinion and Decree.)
    (April 5, 1929. Rehearing Refused.)
    Rusca and Cunningham, of Natchitoches, attorneys for plaintiff, appellant.
    Phanor Breazeale, of Natchitoches, attorney for defendant, appellee.
   ODOM, J.

The plaintiffs, alleging themselves to be heirs of their deceased father and mother, Crawford and Emeline Craig, bring this suit against defendant to recover the sum of $1,000, the alleged value of timber which was cut and removed from the E% of the NE% of Section 32, Township 12, Range 6, by the defendant. They allege that their deceased father and mother owned said land at the time of their death and that, as heirs, they have never been legally divested thereof. They further allege that defendant trespassed upon their property and cut and removed the timber therefrom under a purported deed from A. W. Hanson, but that said Hanson had never in fact owned the said property, he having acquired the same from James McCoy who had styled himself administrator of the ■ succession of their deceased parents; and they further allege that in a suit styled “Heirs of Craig vs. J. M. McCoy et al.” on the docket of said Court, the succession proceedings under which the said property had been sold by McCoy, styling himself administrator, had been declared null, void and of no effect and that the sales made by him to one Gordon and by Gordon to the said Hanson were also null, void and of no effect.

The defendant, in answer, admitted that it had cut and removed from said land the merchantable timber, but that it did so as owner, it having acquired said timber in absolute good faith from one Albert W. Hanson by notarial act, duly recorded in the notarial records of the Parish, and that it had paid full value therefor; and further, that it had bought said property on the faith of the public records of’the Parish.

There was judgment in the lower court in favor of defendant, rejecting plaintiffs’ demands, and they have appealed.

OPINION

The succession of Crawford Craig and his wife, Emeline Craig, was opened in the Parish of Natchitoches in the year 1917. The succession proceedings are in the record, and from them we find that on March 11, 1917, James McCoy presented to the Judge of the District Court of Natchitoches Parish a petition alleging that Crawford Craig and his wife had died intestate therein, leaving property, both real and personal, and that the succession owed debts, both privileged and ordinary; the he was a creditor thereof, and he asked that he be appointed administrator of said succession, and that letters testamentary issue to him. On March 14th, the District Judge ordered that notice of said application be published, according to law, appointed M. L. Dismukes, attorney, to represent the absent heirs; ordered an inventory made by J. O. Gunter, notary public; and designated Richard Graham and J. L. Crocker appraisers. On March 23rd, the inventory was made by the Notary Public and the property was appraised at $400, which inventory was returned and filed in court on March 28th. On that date, a deputy clerk of the District Court certified that notice of the application of McCoy to be appointed administrator of the said succession had been published in the Natchitoches Times; that the delays for opposing said application had expired, and that no opposition had' been made thereto.

On the same day, March 28th, the District Judge, after reciting that notice of said application had been published according to law and that no opposition had been made thereto, and the legal delays having elapsed, ordered “that J. M. McCoy be appointed administrator of this succession, and that letters, as such, issue on his complying with the requisites of the law.” On the same date, the administrator filed bond with surety in the sum of $600, whereupon a deputy clerk issued letters of administration to McCoy reciting after preliminaries, as follows:

“NOW, KNOW YE, That the said J. M. McCoy has been, and he is hereby appointed administrator to the said succession, and that he has fulfilled all the requirements of the law.”

Nothing further seems to have been done until December 15, 1917, when said McCoy, administrator, presented a petition to the Court alleging that funds were necessary with which to pay debts of the succession, and asked for an order authorizing him to sell according to law the property of said succession, especially describing tbe real estate hereinabove described; and on December 29th, the Judge of the District Court signed an order in words and figures as follows, to-wit:

“Let the real estate belonging to this succession be sold, as prayed for, by James M. McCoy, Administrator, in the City and Parish of Natchitoches, on the terms and conditions mentioned in the foregoing petition, after legal delays and advertisements, and according to law.”

Said property was duly advertised in a newspaper to be sold a public auction at the courthouse, in the City of Natchitoches, on Saturday, February 9, 1918, as per newspaper clipping which we find in the record.

On that day, the Administrator, in person, as auctioneer, sold said property to one Samuel R. Gordon, the proces-verbal of the sale reciting that it was sold to the last and highest bidder for the sum of $405, which was paid in cash by the purchaser. Following this sale by the Administrator to Gordon, he sold said property by notarial act on February 21, 1918, to Alfred W. Hanson, the deed being duly recorded in the notarial records of the Parish of Natchitoches, and, on June 15, 1925, said Hanson, by James M. McCoy, agent and attorney in fact, whose power of attorney -was of . record, sold the merchantable timber on said property to the Frost-Johnson Lumber Company, which company, in turn, transferred the same to this defendant.

It is not contended by plaintiffs that the record of the succession proceedings discloses any irregularity. Our examination of them has not disclosed any irregularity or omission, except that we do not find the oath of the Administrator, but we do find that letters of administration issued to him, and it has been held that letters of administration are presumptive evidence that the requisite oath has been taken and that where such is denied, the burden is upon him who makes the denial to disprove it. (Brooks vs. Walker, 3 La. Ann. 150.) Plaintiffs made no proof that the Administrator did not in fact take the oath, and we must assume that he did.

Counsel for appellants in brief state that they do not question the correctness of the position taken by counsel for defendant to the effect that a third person purchasing real estate has a right to rely upon the public records in matters of this kind, but they say that defendant did not allege that it was a purchaser in good faith, for which reason it has no right to urge its good faith before this Court. But counsel is in error, for it was specifically alleged in defendant’s answer that it purchased said property in good faith on the faith of the public records, and that it paid a sound price for said property.

Counsel’s main contention is that Gordon, who purchased the property at the succession sale, was a party interposed, and that in truth and in fact, the property was purchased by Gordon for McCoy, the administrator, and we think that is probably true because in the suit which the heirs of Craig instituted against McCoy, Gordon.and Hanson, there was practically no defense made, it being conceded, as we understand it, that Gordon, in purchasing the property, was acting for the Administrator, McCoy, and the Judge so held, and set aside not only the succession proceedings, but the sale as well. But the present defendant, which had previously acquired the timber on the land in good faith, was not made a party to that suit and had no notice whatsoever thereof. Those proceedings- cannot, therefore, affect the rights of defendant.

Conceding, therefore, that the succession proceedings were null and void, it does not follow that the title to the property which defendant acquired under said proceedings is bad, because defendant is a third party and had no notice of any secret nullities in said proceedings. On the face of the record, McCoy was regularly appointed administrator by the Court; letters issued to him and he was ordered by the Court to make the sale. It has been repeatedly held that mere irregularities in the appointment of an administrator or curator will not vitiate the acts done under said appointment.

Estate of Altemus, 32 La. Ann. 364.

Succession of Robertson, Jr., 49 Ann. 80, 21 So. 197.

Succession of Lehmann, 41 La. Ann. 987, 7 So. 33.

Macready & Burke, Executors, vs. Schenck et al., 41 La. Ann. 456, 6 So. 517.

In the case of Bell et al. vs. Lafosse et al., 126 La. 528, 52' So. 687, it was specifically held that,

“The sale of property under an order of Court by an administrator to a third person interposed for the administrator may be null as between the heirs of the late owner and the original vendee, but this nullity does not extend to subsequent purchasers in good faith, and with no knowledge of the concealed defect in the title of the original vendee.”

To the same effect is’the holding in the case of Chaffe et al. vs. Minden Lumber Co., 118 La. 753, 43 So. 397. See also Copland vs. Carey, 130 La. 189, 57 So. 796; Bender vs. Chew, 129 La. 849, 56 So. 1023; Mays vs. Little Rock & M. R. Co., 121 La. 231, 46 So. 220; Mendelsohn vs. Blaise, 52 La. Ann. 1104, 27 So. 707; Vital vs. Andrus, 121 La. 221, 46 So. 217.

The defendant company bought the timber in question and paid $900 cash therefor, which was a sound price, and it is neither alleged, proved or even suggested that in making the purchase it acted otherwise than in good faith. Our conclusion is, and we hold, that its title to the timber was good and valid.

It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed, with costs in both courts.


author: LECHE, J. Per Curiam:

text:
    No. 431
    First Circuit
    WILLIAMSON v. CHAPMAN ET AL.
    (April 13, 1929. Opinion and Decree.)
    (May 7, 1929. Application for Decree on Rehearing.)

      Taylor, Porter, Loret & -Brooks, of Baton Rouge, attorneys for plaintiff, appellant.
    J. Y. Sanders, Jr., of Baton Rouge, attorney for defendant, appellee.
    Breazeale & ■ Sachse, of Baton Rouge, attorney for Columbia Casualty of New York, defendant, appellee.
   LECHE, J.

Plaintiff entered into a contract with Dewey E. Chapman, whereby he bound himself to build a two-story residence on her lot of ground situated in the Parish of East Baton Rouge. The price agreed upon in the written contract is stated to be $8709. Chapman furnished bond in accordance with the agreement and in conformity to the statutes of this State in regard to building contracts, with the Columbia Casualty of New York as- surety.

This proceeding was filed as a concursus but in reality involves mainly differences that have arisen between plaintiff, owner, and defendant, contractor. Two oppositions were filed by furnishers of material, but these claims have been admitted as correct and as justly due, and the contest is narrowed down to the claims and counter claims, advanced respectively by the owner and by the contractor.

Among these claims and counter claims it is admitted that plaintiff owes in addition to the contract price $617.95 for extra work, changes and additional material.

Plaintiff in her petition, charges numerous short-comings on the part of the contractor, she alleges defective work, substitution of inferior material for that specified in the contract and she finally prays for liquidated damages in accordance with the penalty fixed in the contract, for delayed completion and delivery of the residence. She alleges the tender of the sum of $1187.32 deposited by her in the registry of the Court, as a balance due by her under the contract, for the benefit of all persons entitled to share therein, including her own claims.

Chapman and his surety, the Columbia Casualty Company, filed answers practically identical, denying the alleged imperfections and defects in the construction of the building, claiminr ad tional compensation for extra ' material, and also claiming a ^e on the contract price, whicl , together are said to amount to $4T, ,(. Defendants further allege that the delay in furnishing and delivering the building was caused by the interference of plaintiff, in urging and insisting on numerous changes in the specifications, and by weather conditions, all of these delays being excepted under the terms of the contract.

After a protracted trial, lasting several days, in which a mass of testimony was taken, the District Court rendered judgment recognizing the claims admitted by the two parties, fixing the fees of the attorneys for provoking the concursus at $300, recognizing the claim of the contractor as amounting to $2,287.74 and dismissing the contested claims of1 both plaintiff and defendant.

Prom this judgment both parties have appealed.

One provision in the contract in regard to its performance is that “the work shall commence on the 27th day of April, 1927, and shall be finished and completed by the 1st day of August, 1927,” the work to be done under the personal supervision and to the satisfaction of the owner and the owner’s architect, Lewis W. Grosz. W. P. Williamson, the husband of plaintiff, acting in her behalf and as her agent testifies that when Chapman undertook the performance of the contract, he was on the job every day to see what was going on during the construction of the building, and that he was assisted by architect Grosz who also acted on behalf of plaintiff as superintendent of construction.

Among the defects, flaws, blemishes and other imperfections charged by plaintiff to have resulted by the fault of defendant in the construction of the building, are defective plastering in the kitchen, bath rooms and toilet rooms, window lights not conforming to the specifications, second hand iron railing on front porch instead of new, unpainted surfaces in the boiler room, defective concrete topping of the cement walks and drives in the yard, missing door keys, unbraced screen door, one square of shingles marred by discoloration and metal laths of a size smaller than called for in the specifications. Plaintiff also claims several deductions for expenses incident to the construction of the building, which she claims to have paid and which should have been borne by defendant.

Lewis Grosz, an architect, and therefore an expert in the construction of buildings, selected and appointed by plaintiff to superintend the work performed by defendant under the contract, testified at length as to all the complaints of plaintiff in regard to' the execution of the contract. He seemed to corroborate plaintiff in many o.f her objections to the acceptance of the work, but he finally sums’ up his opinion by saying that most of these objections are trivial and unimportant and that the real defects are four in number, viz:

1. The use of a second-hand iron railing.

2. Defective plastering.

3. Defective topping on concrete walks.

4. Window lights below specifications.

1.

The use qf a second-hand iron railing is admitted by defendant, and for this variance from the specifications plaintiff should be allowed a deduction of $32.

2.

The plastering, from a preponderance of the testimony, appears to us to have been finished substantially in accordance with the specifications. While the plasterer was doing the work, changes and substitutions were made at the request of plaintiff and when the surfaces had been finished and smoothed down, it is said that hollows and depressions could be seen, as shown by shadows, with a light held at an acute angle from the plane of the wall. We believe that it may reasonably be asserted that it is impossible for human ingenuity to finish the surface of a iplane with such perfection that no unevenness could be detected under these conditions. Every automobile driver knows how the ridges and hollows on a public road, invisible in day-time, are exaggerated as they appear in front of strong head-lights at night. It is not shown that the walls are in the least disfigured in their appearance, nor is it shown, even if it be admitted that unusual depressions appear in the finished surfaces, what deductions, if any, plaintiff would be entitled to claim. Expert witnesses testified that the plastering complained of by plaintiff, was up to the highest possible standard. We therefore dismiss this complaint as not well founded.

3.

The defects in the topping on the concrete walks, as we read the testimony, were caused not by faulty construction but by abrasions which resulted from premature use of these walks by permitting steel rims of wheel barrows and wagons to pass over them. The specifications as we understand them, do not require a separate topping on the concrete walks and driveways, but it is not denied that the walks and driveways should denied that the walks and driveway should be finished smooth by the trowel. It is-impossible to say what vehicles were run over the concrete, but it is undeniable that plaintiff did through her employees use the concrete walks for that purpose. We do not believe that the objection is sufficient to justify non-acceptance of the work.

4.

This complaint is to the effect that the lights to be used ■ in the sashes should have been double strength, but were in reality only single strength. A great deal of testimony was taken upon this subject. It seems to be conceded by the witnesses that it is extremely difficult to defferentiate double strength from single strength glass. Three pieces of glass were examined by them. Somé believed that thickness and weight should serve as guides, others thought that clear transparency and tensile strength were the basis of comparison. We frankly confess that after reading all the testimony on that subject, we are unable to determine the proper method of classifying window glass as to its strength. We do find, however, in the testimony that the glass used by the defendant was bought from a reputable merchant as double strength glass, and we are also of the opinion that it would be unfair to conclude that because three panes of glass might be single strength, all the glass used, some 350 to 500 panes in the construction of the house, were also all of single strength. We do not believe that plaintiff has established the ground of this complaint with any degree of certainty and it is therefore dismissed.

Plaintiff prays for liquidated damages in the sum of $1,050 for a delay of seventy days at $15 per day, in completing the construction of her residence. She claims that the work should have been completed by August 1, 1927, but was actually only completed on October 10, 1927, and that under the terms of the contract she is entitled to recover from defendant a penalty of $15 per day for this delay.

It is stipulated in the written contract that the construction is to begin on April 27, 1927, and it is to be completed by-August 1, 1927. It is further stipulated that for every day of delay in the completion of the construction of the building, defendant should pay to plaintiff a penalty of $15, delays caused by the owner, and delays caused by the elements when notified to the owner within 48 hours, excepted.

It is abundantly shown by the evidence that the delays complained about by plaintiff were in great part due to. rainy weather, which were promptly notified by letter to her agent and superintendent, Lewis Grosz, in full compliance with the terms of the contract. It is also shown that much of the delay was also caused by the acts of plaintiff herself, in requiring work to be ■ done over again in order to make changes and alterations in the plan and specifications of the building. Plaintiff’s husband who acted as her agent, on several occasions interfered with the workmen of defendant, acting no doubt in good faith, but with the result that the work was stopped and the delay materially increased. Our opinion from the testimony is that the delays complained of were excepted under the terms of the contract, and that defendant . should not be penalized therefor.

The trial Judge did not believe that defendant Chapman had proved his claim for extra work and material and we see no reversible error in that finding.

Plaintiff has deposited in the registry of the Court the sum of $1187.32 as the balance due by her under the' building contract. As we appreciate the evidence, she should have deposited the sum fixed in the contract, plus the extra sum admitted to be due by her, or say $9326.95, less sums paid by her amounting to $7128.36, or say $2198.59. Prom this amount should then first be deducted the claims of the two materialmen, Kornmeyer and the Darling Lumber Company, totaling $246.52. If our figures are correct, this will then leave a balance of $1952.07 to satisfy the claims, deductions and counterclaims of the owner and of the builder. The only claim to which, in our opinion, plaintiff is entitled to credit is that which amounts to $50, deduction of $32 for railing on front porch, and $18 for the difference in the cost of iron laths of three pounds instead of three and a half pounds as provided for in the contract. After making this further deduction the fund that remains for distribution to pay attorney’s fees and costs, and the claim of the contractor, should amount to $1902.07.

According to Section 10 of Act 298, page 545, of 1926, the person who provokes a concursus is entitled to his attorney’s fee to be paid out of the fund deposited, and the costs of the proceedings are also to be psñd out of the same fund by preference. The underlying reason for this provision in the statute evidently is that the services rendered by the attorney who files the proceedings for a concursus and the services of the officers of the court in these proceedings enure to the benefit of all persons who are interested in the fund, inasmuch as they are rendered to preserve the fund for the benefit of all claimants in proportion to their respective interest therein. It appears to us- from the proceedings filed herein and the large amount of testimony introduced on the trial of this concursus, that the services rendered by the attorneys of the owner of the building, were estimated and fixed by the District Court not merely for filing the concursus proceedings and for preserving the fund, but for the purpose of enabling plaintiff to recover her alleged claims and thereby reduce the fund to whicli alone defendant can look for the payment of his work. The ultimate result then is to compel defendant to pay for these services by deducting them from the fund to which he is entitled. We do not believe that the lawmaker had any such purpose in view. It is impossible under the condition of the record for us to fix the amount to which plaintiff is entitled, in 'order to pay her attorneys for merely provoking the concursus, or to fix the proportionate part of the costs which plaintiff should pay in her unsuccessful attempt to collect the claims which she makes against the defendant, and the case will be remanded to the District Court in order to fix these amounts.

It is therefore ordered that the judg-. ment appealed from be avoided and set aside, that plaintiff be condemned to deposit the further sum of $1011.27 in the registry of the Court, so that said deposit may amount to $2198.59; that there be paid out of said deposit the claims of the Darling Lumber Company and of Kornmeyer; that there be further paid out of said fund deposited, the attorneys’ fees and costs of Court for provoking the concursus, as may be fixed and taxed by the District Court, that plaintiff be paid out of said deposit the sum of $50, and that the balance of said deposit be paid to Dewey E. Chapman, contractor and builder, in full satisfaction of his claim under his contract.

It is further ordered that in case plaintiff fails to make the further deposit of $1011.27 within thirty days of the finalty of this judgment, that she be condemned to pay said amount to Dewey E. Chapman, and that judgment be entered in favor of said Dewey E. Chapman and against Mrs. Georgie P. Williamson in the sum of $1011.27.

It is further ordered that the costs of appeal be. paid in equal portions by plaintiff and defendant.

ON APPLICATION OP BOTH PARTIES FOR AMENDMENT OF FORMER DECREE

Per Curiam:

Several clerical errors were made in our decree fixing the rights of the parties in this case.

On their joint application made within the delays for a rehearing, and by consent of both parties, our former decree is amended in the following particulars, and as thus amended is made final.

It is ordered that in addition to the deductions and allowances in the decree of April 13, 1929, the said Mrs. Georgie P. Williamson is entitled to and allowed to deduct from the sum of $9,326.95 the following items: $175 for finished hardware, $200 for electrical fixtures, $80 for calsomining, and $21.46 for fire insurance; that she be allowed as attorney’s fees for provoking the concursus, $200 and that all costs of both courts be paid in equal portions By Mrs. Williamson and by Chapman.

It is further ordered that said decree of A/pril 13, 1927, as thus amended, be made final.


text:
    No. 406
    First Circuit
    PHILIP WERLEIN, LTD., v. MADSEN ET AL.
    (February 13, 1929. Opinion and Decree.)
    (April 13, 1929. Rehearing Refused.)
    Harvey E. Ellis, of Covington, and Robt. D. Jones, of Franklinton, attorneys for plaintiff, appellee.
    A. J. Finney, of Covington, attorney for defendant, appellant.
   MOUTON, J.

This suit is for a balance of five hundred and ninety dollars ($590.00), on the purchase price of an electric piano bought from plaintiff. Judgment is asked against Henry C. Madsen and Albertina S. Madsen, his wife.

Mr. and Mrs. Madsen were the owners of a grocery store in St. Tammany at the time of the purchase, and of a dance hall they were operating in connection therewith. The wife is not separate in property from her husband, and not a public merchant. Their property is all community.

Mrs. Madsen bought the piano in her name. Having, however, acquired it during marriage, and under the community regime, it became a community asset. The legal presumption which thus fixes the ownership in the conjugal partnership could be destroyed only by conclusive contrary proof. C. C. 2399, 2402, 2405; Bachino vs. Coste, 35 La. Ann. 570; Rocques vs. Freeman, 125 La. 65, 51 So. 68; Bartels vs. Souchon, 48 La. Ann. 785, 19 So. 941; Fortson vs. Moseke, 7 La. App. 131.

There is no such contrary proof herein. It is not claimed by either defendant that the piano is paraphernal or separate purchase by the wife, their contention being that plaintiff cannot recover either against the wife or the husband because she was not authorized by her husband to make the purchase. Defendants contend that the authorization of the husband is legally presumed to her commercial contracts only when she is a public merchant, or is permitted to trade in her name, and in case of his failure to provide her with the necessaries of life. The foregoing is a correct statement of the rule which governs in such cases. C. C., art. 1786.

A piano, it is true, is not one of the necessaries which a husband must provide and as Mrs. Madsen was not a public merchant, defendants say that her husband is not bound because it is contended he did not authorize his wife to buy.

Under the provisions of the article of the Code above cited, the consent of the husband to the contracts of his wife therein referred to is implied. The rule therein stated, however, is not exclusive of other means of proving the assent of a husband in creating an obligation incurred in the name of his wife. The actions of a party, also his inaction and silence, under certain circumstances, are means of showing an assent that creates an obligation. C. C., arts. 1816, 1817; Standard Mfg. Co. vs. Dupuis, 6 La. App. 476.

In testifying on the subject of her want of authorization Mrs. Madsen says, her husband knew nothing of her purchase, and he enters the same disclaimer. On being questioned on this point, she stated in an answer to' her attorney that when she sold anything she was authorized by her husband. The word “anything” has a large margin, and necessarily includes things of little value. If her husband was so punctilious in that respect, it seems rather singular, and not easy of explanation that she should on her own initiative, and without his approval or even knowledge enter into a contract for the acquisition of an electric piano, and at that a second-hand instrument, for eight hundred dollars ($800.00), making a cash payment thereon of one hundred and fifty dollars ($150.00), and obligating herself individually for the balance in deferred payments. She testified that on her first visit to plaintiff’s music store in New Orleans, she examined the piano but did not buy it; that she returned some few days thereafter and effected the purchase. She claims that during the interval between her two visits to plaintiff’s establishment she was at the home of her mother in New Orleans. The proof is that the piano was sent to her, and was placed in the dance hall where it was operated by her and husband for the benefit of their business, and unquestionably for the benefit of the community. It was naturally impossible for plaintiff to show that Mrs. Mad-sen had returned home and had not consulted her husband in reference to the purchase, but the facts and circumstances surrounding the transaction are of such a nature that undoubtedly the district judge came to the conclusion that the husband authorized the purchase, and we certainly find no ground or reason to justify a reversal of this finding. On the contrary, the motive, which prompted the defendants to buy the piano for the benefit of the business they were operating for the benefit of the community, and' under the circumstances hereinabove stated, convinces us that the purchase was not only authorized by the husband impliedly, but we rather believe, expressly.

The husband, as head and master of the community, is liable for the balance on the purchase price of the piano, unless he can be exonerated under the plea of defendants that the instrument was defective.

The avoidance of a sale for redhibition, the vice or defect in the thing sold must render it absolutely useless or its use so inconvenient and imperfect, that It must be presumed the buyer would not have purchased it had he known of the vice. C. C., art. 2520.

The piano was a second-hand instrument and had been rebuilt. When Mrs. Madsen bought she knew that to be the fact.

She signed the contract for the piano, June 14, 1927, and received it on the third of July, 1927. In one part of her testimony, she says it was “never in order when we first received it.” In another part of her evidence she says a couple of weeks after they had the piano it would play tunes that could not be understood. She further says that when a nickel was dropped in the piano it would not play one tune and stop, as was intended by the instrument, that as many as ten to thirty-five were turned out in succession.

Mr. Lawrason, manager of the Electric Piano. Department of plaintiff’s business, says that about a week after the piano was bought he visited Madsen’s step-in near Covington where defendants lived. He says the instrument was out of regulation which was due to the moving of the piano to that place. In about a half hour he adjusted it, and demonstrated to defendants how it should be played.

Upon complaint that the piano was not operating as it should, Lawrason paid a second visit to defendants, several months after the first. On his second trip he found that the mechanism of the instrument had been clogged in its inner parts by the accumulation of dust or dirt. He again instructed defendants that they had to keep the piano clean and free of this dust, otherwise the instrument could not be properly operated. He also on that occasion found that the condition of the music roll was the cause of the continuous playing of the instrument, and demonstrated to them how to remedy this trouble.

Mr. Madsen admits that Lawrason told him the piano had to be cleaned when it got full of dust or dirt, but that it did not run long enough to need cleaning out. He was then asked “did you look at it to see if it needed it?” His answer to that question is as follows: “I looked at that like I look at the man in the moon.” The instructions given by Lawrason were evidently not carried out, and the piano failed to operate as was expected.

There was, however, no vice or defect in the thing sold to authorize the avoidance of the sale under provisions of Civil Code, article 2520.

Mrs. Madsen says the piano failed, to operate in about a couple of weeks after its purchase, if not at an earlier date. There is, however, a letter from Mrs. Mad-sen to plaintiff written October 25, 1927, in answer to a demand for payment on the balance of the purchase price. This letter, it must be noted, was written more than three months after the couple of weeks after her purchase at which time, she says in her testimony that the piano would play tunes that nobody could understand, and, which- was written after the time these defendants contend the instrument would play continuous tunes to the extent of thirty-five in succession. In the letter above referred to, Mrs. Madsen urges no complaint whatsoever in reference -to troubles of which she now complains in her testimony. In that letter she only expresses her regret that she could not make any payment on the account, which she ascribes, as we read the letter, to no business in that line at the time. Two other letters written later, one November 21, the other November 2'4, 1927, show that revenues or profits could not be derived from the operation of these electric pianos in establishments of the character defendants were running, which resulted in their inability to meet installments on the contract Mrs. Madsen had signed.

In all these letters no complaints whatsoever are urged to the effect that the instrument was defective, so useless, or imperfect that can possibly lead to the conclusion that Mrs. Madsen would not have bought had she been aware thereof. These defendants simply made _ a mistake in acquiring the piano as a profitable business investment which we have no doubt was for the benefit of their business, a community venture for which the husband is bound.

The judgment rendered, against the husband for the claim, and rejecting the demand as against the wife, is therefore correct.


author: ELLIOTT, J. LECHE, J.

text:
    No. 390
    First Circuit
    GRAVET v. GONSOULIN
    (January 9, 1929. Opinion and Decree.;
    (March 6, 1929. Rehearing Refused.)
    (March 25, 1929. Writ of Review denied by Supreme Court.)

      L. A. Goudeau, of Niblett, attorney for plaintiff, appellant.
    Porteous R. Burke, of New Iberia, attorney for defendants, appellees.
   ELLIOTT, J.

Mrs. Dorcienne Gonsoulin Gravet, wife of Jules Gravet, claims the ownership of an interest in two-thirds of Section 28 T. 17 S. R. 10 East, and Section 19 T. 11 S. R. 11 East La. Meridian, known as Belle Isle, situated in the Parish of St. Mary, based on descent from her ancestors, Jean Francois Gonsoulin, who departed this life in the Parish of St. Martin in 1819, and his wife, Marie Celeste de la Gautrais, who departed this life in the same parish between 1880 and 1835.

She alleges that the succession of Jean Francois Gonsoulin ^ was opened by his widow, Marie Celeste de la Gautrais in the Parish of St. Martin in January, 1823. That on July 8, 1854, Jean Baptiste Gonsoulin, son of Jean Francois Gonsoulin and Marie Celeste de la Gautrais, both at the time deceased, filed in their successions in the Parish of St. Martin, a tableau of distribution and partition of their estate. That notice was duly given by publication of the filing of said account and that no opposition was made thereto. That said tableau of distribution and partition was duly homologated. That the heirs of said parties were recognized by the court as the owners of said property and placed in possession of the same. That their successions were fully administered, accepted by the heirs according to said tableau of distribution and partition and the' administration closed. A certified copy of the notice published giving notice of the filing of said account was annexed to and made part of the petition.

That on November 27, 1927, Adrien Gonsoulin filed in the District Court in the Parish ■ of Iberia a petition in which he alleges himself as one of the heirs of Jean Francois Gonsoulin and Marie Celeste de la Gautrais, his wife. That there were debts due by their estates which necessitated an administration. That the court believing his representation to be true, ordered that an inventory be made. The above described property was inventoried and the said Adrien Gonsoulin was in due time appointed administrator of said estates. That letters as administrator issued to said Adrien Gonsoulin from the court in the Parish of Iberia on February 26, 1918, and on the same day, he filed a petition in said court praying to be allowed to sell all the property inventoried for the purpose of paying the alleged debts of said succession. That an order issued to him on the same day from said court authorizing the sale, and pursuant thereto a two-thirds interest in said property, was, on April 6, 1918, after due advertisement, adjudicated by said Adrien Gonsoulin to himself and to Mrs. Branch K. Miller.

That subsequently the said Adrien Gonsoulin and Mrs. Branch K. Miller instituted monition proceedings in the District Court of the Parish of Iberia, the object and purpose of which was to homologate and confirm their said titles; and on May 30, 1922, a judgment was rendered in said proceedings homologating and confirming the same.

She alleges in her petition that said succession proceedings had in the Parish of Iberia, together with the order of sale, and the sale made to Adrien Gonsoulin and Mrs. Branch K. Miller, and the said monition proceedings and judgments therein rendered are all absolute and incurable nullities, for the reason that the court, in the Parish of Iberia, had no jurisdiction ratione materise. That said John Francois Gonsoulin and Marie Celeste de la Gautrais were, at the time of their deaths, both residents of, and domiciled in the Parish of St. Martin. That their succession had been opened, administered and closed, their heirs recognized as owners, and placed in possession of said property by the judgment of the court in the Parish of St. Martin long before the Parish of Iberia was created. That therefore the court in the Parish of Iberia was without authority and without jurisdiction ratione materias to entertain said proceedings.

The petition prays that the entire proceedings had in the successions of Jean Francois Gonsoulin and Marie Celeste de la Gautrais in the Parish of Iberia, and the judgment rendered in said monition proceedings, be all held to be absolutely null and void on said account. It is not prayed that the interest of the petitioner in said land be recognized and fixed, but there is a prayer for all such orders and decrees as may be necessary in the premises and for full and equitable relief.

The defendants, Adrien Gonsoulin and Mrs. Branch K. Miller, excepted to plaintiff’s demand on the ground that her petition disclosed no cause of action and that the issues raised in her petition had been adjudicated and constituted res adjudicata. The exception of no cause of action was overruled, but that of res adjudicata was referred to the merits.

The defendants then filed pleas of prescription of 1, 2, 3, 5 and 10 years and by separate plea filed at the same time, urge that plaintiff was estopped from attacking said succession and monition proceedings had in the Parish of Iberia. The questions raised by these pleas were submitted to the court for judgment on an agreed statement of facts and on the records of the succession and monition proceedings had in the Parish of Iberia.

The district court sustained the exceptions of prescription and the plea of estoppel and dismissed the suit. The plaintiff has appealed.

For the purpose of reviewing the case, we have before us only the record of the plaintiff’s suit in the Parish of Iberia, the agreed statement of facts, succession proceedings, and monition suit had in the Parish of Iberia. According to the agreed statement of facts, record of the succession of Jean Francois Gonsoulin and Marie Celeste de la Gautrais, as opened, administered and closed in the Parish of Iberia, and monition proceedings instituted in the same parish, plaintiff’s father, through whom she claims by inheritance^ requested Adrien Gonsoulin, defendant, to give his attention to the lands left by his above named ancestors and to administer same, and their successions were accordingly opened in the Parish of Iberia in 1917. After her father’s death which took place in 1901 or 1903, plaintiff, as his heir, also as an heir of her predeceased mother, acquiesced in the appointment of Adrien Gonsoulin as administrator in the Parish of Iberia, and contributed funds on various occasions to assist him in meeting expenses incurred by his administration. Plaintiff, at the time of the trial was between sixty-five and seventy years of age and has always resided with her son Henry Gravet in the Parish of Iberia. Henry Gravet was a regular subscriber to the New Iberia Enterprise prior to 1917, and was continuously afterwards until his death. The proceedings in the successions of Jean Francois Gonsoulin and of Marie Celeste de la Gautrais, were duly published in the paper mentioned during the time he was a subscriber for the same. Jean Francois Gonsoulin departed this life in the Parish of St. Martin about 1819, and Marie Celeste de la Gautrais, his wife, died in the same parish about 1830 or 1835. The Parish of Iberia was carved out of the Parishes of St. Martin and St. Mary in 1868, and when it was created, the place where Jean Francois Gonsoulin and his wife lived at the time of their death, became a part of the Parish of Iberia.

The agreed statement of facts, succession records, and monition proceedings in the successions of Jean Francois Gonsoulin and wife in the Parish of Iberia make no mention of plaintiff’s averments that the successions of Jean Francois Gonsoulin and of Marie Celeste de la Gautrais, his surviving widow, were opened and administered in the Parish' of St. Martin, a tableau of distribution and partition therein filed and homologated, their heirs sent into possession of the property, and the administration closed in the Parish of St. Martin in 1854. This allegation is the only attack in plaintiff’s petition, which involved the right and power of the district court in the Parish of Iberia to open and authorize an administration and sále of the property belonging to these estates in 1917, and to subsequently confirm the proceedings by monition. As plaintiff’s allegations on this subject are not admitted in the agreed statement of facts, and as no reference is made to same in the succession and monition proceedings had in the Parish of Iberia, we cannot regard these averments as admitted facts. The averments, which plaintiff urges as showing want of jurisdiction ratione materi® in the district court in the Parish of Iberia, cannot therefore be regarded. It results that we cannot presume that the debts alleged to exist in the succession proceedings in the Parish of Iberia in 1917, were necessarily all post mortem matters.

The certified copy of notice of the filing of a tableau of distribution and partition in the estate of Francois Gonsoulin in the Parish of St. Martin in July, 1854, annexed to plaintiff’s petition in this case is a matter of fact, taken out of the case by the agreed statement of facts and records on which the case was submitted to the court. The only succession and administration proceedings in the estates of Jean Francois Gonsoulin and Marie Celeste de la Gautrais, established to have taken place, are those opened and had in the Parish of Iberia in 1917. The place where Jean Francois Gonsoulin and Marie Celeste de la Gautrais resided and had their domicile at the time of their death, was in 1917, in the Parish of Iberia. So far as the facts before us show, there has never been any previous succession and administration proceedings in the Parish of St. Martin, as claimed by the plaintiff. And, as the proceedings in the Parish of .Iberia were instituted and carried on at the instance of plaintiff’s father through whom she claims by inheritance, and as plaintiff herself acquiesced in same after his death and after the death of her mother and contributed to their existence after her rights accrued, it follows that said proceedings are not null and void, but valid, and were properly confirmed by the monition. And it follows as a further consequence that defendant’s pleas of acquiescence, estoppel and prescription of five years, urged against plaintiff’s demand, were properly sustained.

The monition proceedings homologated by the judgment of the district court on May 30, 1922, were brought before this court on appeal, and on the 12th day of December, 1923, this court rendered judgment affirming the judgment appealed from.

Adrien Gonsoulin was an heir of the decedents and therefore had the right to buy. C. C., art. 1148 (amended Act 197 of 1912).

Under the Revised Statutes of 1870, Sections 2375 and 2376 the judgment rendered in the monition proceedings constituted res adjudicata as to plaintiff.

For these reasons the judgment appealed from sustaining the plea of estoppel and the prescription of five years is affirmed. The plaintiff and appellant to pay the cost in both courts.

ON APPLICATION FOR REHEARING.

LECHE, J.

Francois Gonsoulin and his wife Marie Louise de la Gautrais are said to have departed this life about one hundred years ago, the former in 1819 and the latter in 1830, owning at the time of their death, a one-third interest in 1218.75 acres of land known as “Belle Isle.” The land is now included within the limits of the Parish of St. Mary. Francois Gonsoulin and his wife lived and died in the Parish of St. Martin. The Parish of Iberia was created by an act of the Legislature approved October 30, 1868, and was formed from parts of the Parishes of St. Martin and St. Mary and it is not disputed that the location of the home occupied by Francois Gonsoulin and wife, where they resided and died, is now within the limits of the Parish of Iberia.

It is also unquestioned that plaintiff is a descendent of Francois Gonsoulin and wife. She claims to be an heir of the said Gonsoulin and wife and also an heir of St. Clair Gonsoulin, who she says became the owner of another third of the 1218.75 acres of land known as Belle Isle, so that she claims as heir of both Francois and St. Clair Gonsoulin, her1 heritable portion in two-thirds of the property. What the proportionate part of her inheritance amounts to, is difficult to state exactly, but she alleges it to be worth seven hundred and fifty dollars and that allegation is not in dispute.

The. question of possession of the land is not an issue in the case, and while there is no evidence upon that subject in the record, we assume that the land is swampy and not susceptible of occupancy or corporeal possession.

It is not alleged or shown who controlled this property, who administered it or who looked after the payment of taxes due upon it, from the time of the deaths of Francois Gonsoulin and wife, and of St. Clair Gonsoulin, until about the year 1900, when it is admitted that plaintiff’s father, Alcide Gonsoulin, who died about the year 1901, and numerous other heirs of Francois Gonsoulin asked Adrien Gonsoulin to give his attention to the lands of Francois Gonsoulin and to administer the same.

It is admitted that plaintiff who at the time the case was tried in the district court, was between 65 and 70 years of age, acquiesced as heir of her predeceased father and mother in the appointment of Adrien Gonsoulin and that she contributed funds at the request of Adrien Gonsoulin to assist in meeting expenses of administering the property and that her last contribution was in the year 1903.

It seems that about this time the succession of Francois Gonsoulin or his heirs were engaged in litigation in the Federal courts about matters which affected the interests of the succession either in these or other lands, the nature of which is not clearly shown, and that this litigation terminated about the year 1905. Adrien Gonsoulin who was acting as administering agent for the succession, the heirs and especially for plaintiff in this case, had incurred heavy expenses for attorney’s fees, costs and numerous incidentals, wished to be reimbursed the moneys he had advanced and to pay the debts which he had incurred in his capacity as agent for the succession and the heirs.

It is admitted that the heirs and descendants of Francois Gonsoulin numbered at the time several hundred, were scattered in many parishes of the State of Louisiana as well as several other states of the Union and that among them were numerous minors. Under these conditions, Adrien Gonsoulin applied to be appointed administrator of the succession on December 30, 1926. His application was published and he was in due time appointed and he qualified as administrator. The records of these proceedings were lost and after diligent search could not be found. On November 24, 1927, Adrien Gonsoulin again applied for appointment as administrator and again qualified as such. In due course, the interest of the succession in the lands known as Belle Isle was ordered sold to pay debts, and was adjudicated to him and to Mrs. Branch K. Miller, who are defendants in this case.

On January 9, 1922, Adrien Gonsoulin and Mrs. Branch K. Miller then applied to the dictrict court for a monition. That proceeding was opposed by many of the heirs of Francois Gonsoulin, though the plaintiff was not one of the opponents. After due trial and hearing, the monition was finally granted and homologated.

The present suit was instituted by plaintiff on the 13th of March, 1928, and its purpose is to have decreed as null and void, the proceedings had, the order of sale and the sale made thereunder to Adrien Gonsoulin and Mrs. Branch K. Miller, and to annul the judgment rendered in the monition proceedings taken in said succession of Francois Gonsoulin and his wife, for the reason that the court sitting for the Parish of Iberia, was without jurisdiction ratione materias, of the subject matter.

Defendants filed numerous exceptions to the plaintiff’s petition and her demand was rejected on the ground that she is estopped from attacking these proceedings and on the further ground that her demand is prescribed by the prescriptions of one, five and ten years.

That judgment was affirmed by this court (119 So. 785) and plaintiff has filed a motion for rehearing.

Plaintiff seems to pitch her case on the proposition that because the domicile of Francois Gonsoulin and his wife were included within the territorial limits of the Parish of St. Martin when they died, therefor the only court that had jurisdiction of their succession is the court sitting for the Parish of St. Martin. The act creating the Parish of Iberia in the year 1868 provides in Sections 8 and 9, that the records of cases wherein the defendants became residents of the Parish of Iberia under the terms of the act, should be transmitted to the latter parish. These sections of the act were enacted to protect the right of everyone to be sued at his domicile. A fortiori do they hold good in regard to successions which should be opened and administered under the jurisdiction of the court having jurisdiction over the domicile of the deceased.

Annexed to plaintiff’s petition is a document purporting to be a certified copy of a notice of a tableau of distribution and partition of the estate of Francois Gonsoulin, of date July 4, 1854. From this document plaintiff contends in argument, that the succession of Francois Gonsoulin had been opened, administered and closed in the Parish of St. Martin, and therefore could not again be opened in the Parish of Iberia. Conceding the truth of the fact contended for by the plaintiff, it is nevertheless also true and admitted by her as a fact, that about the year 1900, her father through whom she claims to be an heir of Francois Gonsoulin, asked Adrien Gonsoulin to look after and administer the lands belonging to that succession, that she acquiesced in this and even at first contributed towards paying the expenses of such administration. It is also true that Adrien Gonsoulin administered said property and that in order to pay the expenses of such administration he was compelled to open the succession. That he first opened it in 1906, filed additional proceedings in 1917, and finally terminated his administration in 1922 or 1923. During all of these years plaintiff resided within the Parish of Iberia. The proceedings commenced by her agent Adrien Gonsoulin, were conducted openly, necessary legal notices appeared in the official paper of the Parish of Iberia and there is not a breath of suspicion as to the honesty of the motives actuating Adrien Gonsoulin and the faithful performance of his gestión as administrator and agent of the heirs and especially of the plaintiff.

It seems to us that it would be unconscionable to permit plaintiff who filed the present suit in 1928, after such a long period of inaction, to attack as null and void the acts performed by her agent in her behalf and for her benefit. It makes no difference whether Adrien Gonsoulin’s authority was vested in him by law or by the consent of the plaintiff. She is equally bound in either event and is now estopped from questioning that authority. The case referred to by counsel, Clemens vs. Comfort, 26 A. 269, and upon which plaintiff places great reliance, is not in conflict with our judgment in this case. The facts in Clemens vs. Comfort are the same as in the case of Mrs. Julia Scott and Husband vs. The World, reported in the same annual a few pages further, at page 285. It appears that Elijah W. Groves, an uncle of the minor heirs of Horace Groves, and not acting with any authority on behalf of the minors, knowing that Horace Groves’ succession had been opened and settled in the Parish of Madison, fraudulently caused the succession to be again opened in the Parish of Tensas which was by an act of the Legislature formed from part of the Parish of Madison, in order to .despoil the minors of their rights to certain property. Such were the facts reeking with fraud underlying that litigation. The decisions in these two cases condemn the conduct and actions of Elijah W. Groves as conceived and carried out for a fraudulent purpose, while in the case at bar the doings of Adrien Gonsoulin were with the actual or implied authority of the plaintiff, complainant, and were performed, in good faith and for an honest purpose.

The want of jurisdiction which plaintiff characterizes as jurisdiction ratione materias, is really ratione personae and that may be waived.

It appears to us that plaintiff by her conduct and inaction, has not only waived such jurisdiction, but has ratified the doings and actions of her agent and she is now estopped from attacking them.

Her application for a rehearing is therefore refused.


author: MOUTON, J. LECHE, J.

text:
    No. 425
    First Circuit
    BUSH v. BAHAM
    (November 10, 1928. Opinion and Decree.)
    (January 9, 1929. Rehearing Granted.)
    (April 13, 1929. Opinion and Decree on Rehearing.)
    Cross and Moyse, of Baton Rouge, attorneys for plaintiff, appellant.
    H. K. Strickland and Fred G. Benton, of Baton Rouge, attorneys for defendants, appellees.
   MOUTON, J.

In July, 1925, defendants bought a fractional lot of ground in Baton Rouge at tax sale for the city taxes of 1924.

The contention on this appeal is that the tax. adjudication should be declared null, for the reason that plaintiff, the tax debtor, did not receive notice of delinquency for the taxes for that year.

The proof is that plaintiff was born in Baton Rouge, where she resided until November, 1923, at which time she moved to New Orleans. Plaintiff did not appear on the assessment roll as a non-resident, and there is no proof or intimation in the record whatsoever that the taxing authorities knew that plaintiff had moved from the city of Baton Rouge, or that she was residing in New Orleans when written notice of delinquency was sent her in Baton Rouge by the city tax collector. Her address was taken from the city directory, and the notice was addressed to her by registered letter, which was returned “unclaimed” by the postal authorities in Baton Rouge, as appears from the stamp mark on the envelope on which the notice was sent. Sections 50 and 51 of Act 170 of 1898 require that the tax collector shall give notice of delinquency by addressing the notice to the tax debtor and sending it to him by registered mail. In the instant case plaintiff was then the record owner. The notice was, as hereinabove stated, addressed to her in Baton Rouge, where she had previously resided, and where, it may also be proper to state, the property was assessed in her name.

In their contention for a reversal, counsel for plaintiff rely on the cases reported as McCrory vs. Bradford, 130 La. 215, 57 So. 892; Adsit vs. Park, 144 La. 937, 81 So. 430, and Wilkerson vs. Wyche, 158 La. 596, 104 So. 381.

In McCrory vs. Bradford, 130 La. 215, 57 So. 892, the notice had been sent to Burnside by letter, which was returned to the sheriff with the notation that the post office address of the tax debtor was “Ho-bard.” It is obvious in that case that the' sheriff was unmistakably informed that the tax debtor had not received the notice, and that he knew where he could address the notice to the taxpayer. The court in that case very properly held that the sheriff should have made an effort to reach the tax debtor at his post office address before adjudicating the property at tax sale.

In Adsit vs. Park, 144 La. 937, 81 So. 430, the land sold at tax sale was owned by four parties, each having an undivided one-fourth interest. The address of the notice was to Park Wilcox et al. The court held that the address in the owner’s surname only, or to one of several joint owners “et al.,” is not a compliance with the law as to the other joint owners. There are no such facts here. The court also found in that case that Joe M. Park and Sam Park who were co-owners in the property, were well known to the tax colleeter; that he knew their post office address and could have ascertained their proper address without much effort. Here the tax collector had no such knowledge, and this case is not governed by the ruling applied there.

The recital of the facts in Wilkerson vs. Wyche, 158 La. 596, 104 So. 381, shows that the assessment, notice, and proceedings for the tax sale had been conducted in the name of a dead man, and who had died several years prior thereto. The court also found that without any further effort on the part of the tax collector to notify the actual owners the property had been adjudicated. In connection with the foregoing statement, the court took occasion to remark that by consulting the conveyance records the tax collector could have ascertained that the property had been conveyed by the heirs of the deceased, and at the time of the sale the owner of record was one J. R. Sibley. Consulting the conveyance records in the instant case would have been of no avail, as the lot was still in the name of plaintiff, who the tax collector had no reason to believe had moved from Baton Rouge to New Orleans.

In giving notice of delinquency to plaintiff, under the facts of this case, we find that the requirements of the statute were complied with and that the sale was legal.

The judgment rejecting the demand is correct.

Affirmed.

ON REHEARING.

LECHE, J.

A rehearing was granted in this case in order that we might reconsider the question as to whether the tax collector had complied with the law which requires the giving of notice of delinquency to the tax debtor as a. condition precedent to the sale of his property for non-payment of taxes. The test in that regard seems not to have been whether the tax debtor has received the notice, but whether the tax collector had complied with sections 50 and 51 of the Revenue Law, Act 170, p. 370, of the Acts of 1898. Adsit vs. Park, 144 La. 934, 81 So. 430; Baum vs. Smith, 127 La. 1091, 1092, 54 So. 399. It is conceded that the law requires such notice (Constitution, art. 10, Sec. 11), and it must be given in the manner required by law.

The law regulating the manner in which the tax debtor is to be notified is contained in the cited sections 50, 51, and 52 of the Act of 1898.

The facts as stated in our opinion on the first hearing are fully supported by the evidence. At the time the assessment was made, plaintiff resided in Baton Rouge, but when the taxes became due she had removed from that city. The tax collector used due diligence in trying to locate plaintiff, but was unsuccessful; and herein lies a difference between this case and the cases of McCrory vs. Bradford, 130 La. 215, 57 So. 892, and Foreman vs. Fontenot, 131 La. 926, 60 So. 618. But plaintiff contends that, even if the tax collector could not locate her or find her address, he should have notified her under section 52 of the Act of 1898, That section provides for publication of “one general notice” to all unknown owners and non-residents whose post office address is unknown. The assessment roll could not truly describe plaintiff as an unknown or as a non-resident whose address was unknown, for as before stated, when the rolls were made by the assessor, she was neither unknown nor a non-resident. She became unknown and a non-resident by her own action and conduct.

Late decisions by the Supreme Court in the cases of Jones vs. Curran, 156 La. 1056, 101 So. 415; Recker vs. Dupuy, 161 La. 392, 108 So. 782, and Kivlen vs. Horvath, 163 La. 901, 113 So. 140, seem to hold that under circumstances as are presented in this case, it is the tax collector’s duty to notify the delinquent taxpayer in accordance with section 52 of the Act of 1898, No. 170—that is, by publication of a notice as is prescribed for unknown owners and owners whose post office address is unknown. In other words, it is not sufficient for the tax collector to follow the directions of sections 50 and 51, but he must, as a last resort, comply with section 52, and such compliance only will satisfy the constitutional requirement of notice to the delinquent taxpayer.

For these reasons our former judgment is set aside, the judgment of the district court is avoided and reversed, and it is now ordered that the tax sale of the property of plaintiff for the taxes of 1924, recorded in Book 153, folio 416, of the Conveyance Records of the Parish of East Baton Rouge, be annulled, set aside, and canceled from said records; that whatever taxes may have been paid on said property by defendants be reimburséd to them in accordance with the requirements of the Revenue Law; and that plaintiff’s right to recover rents and revenues be reserved.

Defendants to pay all costs of both courts.