text:
    No. 13,332.
    James E. Billington et. al. Liquidating Commissioners, vs. Poitevent & Favre Lumber Company.
    Syllabus.
    1. Where an attachment is levied on the property of a corporation which is in an insolvent condition, and whose stockholders have been publicly -notiflec to meet for the purpose of considering the question of lta liquidation, ant such attachment is dissolved on bond, and, afterwards, by Judgment, and it does not appear that it was issued through malice, or that the property has been injured by reason thereof, or would have sold, in tne course, and for the purposes, of the liquidation of the company, to greater advantage if such attachment had not been levied, and no specific damages with respect to such property are proved, none will be allowed. ,
    2. Two. hundred dollar's, in the instant case, is held to bo a reasonable and sufficient amount to be allowed as attorneys fees for dissolving an attachment issued upon insufficient grounds, the amount claimed by the attaching creditor having been $2,224.70, and the matter having been appealed, to, and tried in, this court.
    APPEAL from the Civil District Court, Parish of Orleans.— Theard, J.

      Joseph Brewer and Ernest T. Florance for Plaintiffs, Appellants.

      Farrar, Jonas & Kruttschnitt for Defendant, Appellee.
   The opinion of the court was delivered by

Monroe, J.

Plaintiffs, as liquidating commissioners of the “Standard Planing Mill and Manufacturing Company,” sue to recover damages, alleged to have been sustained by reason of the wrongful issuance, by defendant, of a writ of attachment, and the seizure, thereunder, of the property of the company of which they are liquidators. Several grounds for damages are set tip in the petition, but they have all been abandoned with the- exception of two, viz.: the alleged deterioration in the value of the property whilst under seizure, and the attorney’s fees, paid, or incurred, in dissolving the attachment. The defense urged in this court is a general denial.

The facts, as we find them, from the record, are as follows: In May, 1895, the officers of “The Standard Planing Mill and Manufacturing Company,” in view of that company’s financial embarrassment and lack of business, issued a call for a meeting of its stockholders, to be held, after thirty days’ advertisement, upon June 2S, 1895, to consider the situation, and to determine whether there should be a liquidation, etc. Early in June, and whilst the call for the stockholders’ meeting was being published, a meeting of the creditors of the company was convened, and, whilst no definite action was taken, they, with the exception of the present defendant, appeared to be willing that the company should continue in business, if the stockholders, at the meeting- to be thereafter held, should so determine, and, presumably, if they made some arrangement as to the debts of the company, which were in the neighborhood of $25,000.

After this meeting of the creditors, the company endeavored to reduce its indebtedness, by giving property in payment to such of its creditors as were willing to accept it; turning over some of its horses, mules, wagons, etc., to one creditor; and lumber, rough and dressed, to others. In the meanwhile, its business seemed, practically, to have ceased, and whilst it is said that the plant was operated when there was anything to be done, the impression which we gather from the testimony is, that for ten days or more, prior to June 21, 1895, not a wheel was turned. Upon the date mentioned, the Lumber Company filed its suit, upon notes amounting to $2,224.70, and caused the issuanco of the 'attachment, as stated. The seizure was effected, so far as the real estate was concerned, by registry in the mortgage office; and as to the personal property! presumably, by actual taking into possession by the sheriff. Certain horses, mules, etc., claimed by another creditor as his property, were released on bond, and different lots of lumber were the subjects of claims for vendors’ privileges by other intervenors. Upon the 2nd of August, the entire seizure was released on bond, upon the application of the defendant in attachment.

In the meanwhile, on June 24th, three days after the attachment, James E. Billington & Son, creditors of the seized debtor, filed a sworn petition, alleging its insolvency, and: praying its dissolution and liquidation and the appointment of receivers. Other creditors intervened, and the company, itself, filed an answer, together with a copy of a resolution of its Board 'of Directors, admitting and declaring its insolvency, and all joined in the prayer for dissolution, liquidation, and the appointment of receivers. Accordingly, upon June 24th, the present receivers, or liquidating- commissioners, were appointed, and this action was followed, on June 28th. by the meeting of the stockholders, at which the same were ratified and approved, and the company formally dissolved. The answer to the suit brought by the Lumber Company, was filed by the liquidators, July 2, 1895, and they, on the same day, filed their rule to dissolve the attachment; and there was one judgment, January 21, 1896, in favor of the Lumber Company, on its claim, which was undisputed, but dissolving the attachment on the ground that the allegation to the effect that the defendant was disposing of its property with intent to defraud, was not sustained. An appeal was taken from this judgment, on the latter point, and the judgment appealed from was affirmed by this court (Lumber Co. vs. Manufacturing Co., 49 Ann., 72).

In June, 1896, the liquidators brought the present suit for damages, 'and they have appealed from a judgment in their favor, awarding them $200.00, and ask that the amount be increased.

It will be seen that the plant was under seizure from June 21st to August'2nd, inclusive, or, say, forty-three days, at the end of which time it was released on bone?, and some two months later was sold to a purchaser, who bought, not for the purpose of running, but to wreck, it; and it is claimed that the defendant should be held liable in damages in the sum of $11,000 on the ground, as set forth in the petition, that, by reason of the attachment, the company was obliged to go into judicial liquidation, and incur the costs of the same, because of the stoppage of its business; and that it was thereby prevented frqjn making a sale of its plant for $20,000.00; that the property deteriorated in value, whilst under seizure, to the extent of $2,000, or more; and that it was compelled to incur attorney’s fees, in dissolving the attachment. These grounds have been abandoned, as has been stated, save the deterioration and the attorney’s fees; it was so, distinctly, announced, at least, in the .oral argument, though the brief filed concludes with the prayer that there be judgment in favor of the plaintiff for $11,000 (being the full amount prayed for in the petition), and such amount for attorney’s fees, as the court shall deem proper. It is probable, however, that the brief was filed before the case Was argued, and the court, will, therefore, confine itself to the points to which the counsel confined themselves in the last argument presented.

Mr. Gauscs was president of the company, and was evidently more familiar with its business, and with the value of the plant, than any one else who testified. He was, moreover, a truthful and conscientious witness. Weighing his testimony carefully, it appears that the idea which he expressed (by no means an unreasonable one) is, that an injury is inflicted upon a plant, which is to be sold as a going concern, by stopping its business; and that machinery which is neglected while not in use may suffer thereby. He does not undertake to say that the plant in question could have been sold, even if it had not been seized, ■ to any one who wished to buy and operate it, or that, as a matter of fact, the machinery was injured by non-use whilst under seizure. Nor does it seem probable that it should have been, since the seizure, though perfectly effective, was merely on paper, and Mr. Gause, not being actually dispossessed, and remaining about the premises, would not have stood by and allowed the property to go to destruction for lack of attention, without, at least, notifying the sheriff.

As to the injury which may have resulted from the stoppage of the business, that stoppage was a necessary consequence of the condition of the company. A month before the attachment, the officers of the company had published a notice, calling a meeting of the stockholders for June 28th, to consider the question of liquidation. Before that meeting convened, the directors adopted a resolution to the effect that the company was insolvent. And the action of the directors and other officers, in invoking the aid of the court for the purposes of the liquidation, when they assembled according to the notice, was ratified by the stockholders, after the president and directors had fully informed them as to the financial condition of the company, “the losses sustained in business, the suits'including an attachment * * . * involving large claims against said company,” and other matters affecting the company’s interests.

If the company was insolvent on June 24th, when the Board of Directors so declared, it was equally insolvent on June 21st, when the attachment was levied, and the sale of its property must, necessarily, have been effected, either as the result of a seizure by some creditor, or else in the process of liquidation. The testimony of Mr. Billington, therefore, to the effect that he would have been willing to give $25,000, or $28,000, for the plant, at the time of the attachment, aside from being indefinite, is not to the point with reference to the question of the loss, if any, sustained as the result of the attachment, since, in the then existing condition of affairs, the sale could hardly have been made to him, except with the consent of all the creditors; and, if he had really wanted to buy, that consent could as readily, and perhaps more readily, have been obtained after the attachment as, or, than, before. The fact, however ,that he was willing, shortly after the attachment was bonded, in his capacity of liquidator, to make, a sale of all the assets for $20,000, on terms which the court refused to approve, and that, later still, he preferred to hold his position and sell the plant to a purchaser, who bought merely for the purpose of wrecking, at $16,000, sufficiently indicates that the witnesses was not seriously in the market as a buyer.

If, then, as we think the evidence shows, the business must have stopped from lack of means to pay its debts and carry it on; and the plant could not, therefore, have been sold as that of a going concern, but must, in any event, have been sold, as in point of fact it was sold, in the course, and for the purposes, of the liquidation of the company, the temporary seizure, under the attachment, inflicted no damage which is established by the evidence, or which we find ourselves able to assess.

The admissions as to the insolvency of the company, and the action taken by the directors and stockholders, within a few days after the attachment, were not in evidence for the purposes of the former appeal, and whilst we are not prepared to say that such evidence would have affected the conclusions then reached, it does affect the question of the ability of the company to have gone on with its business, which is important to the case before us. The $200 allowed by the judge a quo, we assume, was for attorney’s fees, and is a reasonable amount for the services rendered.

The judgment appealed from is, therefore, affirmed.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 13,182.
    Succession of James S. Richardson vs. Heirs of E. Richardson et al.
    Syllabus.
    While the law requires that a family meeting shall fix the terms upon which the interest of a minor co-proprietor of real estate shall be sold preparatory to a partition of the common property by licitation, it will suffice that it ratify and approve of the terms upon which same is made, if done contemporaneously therewith.
    Koehl vs. Solari, 47th Ann., 890, affirmed.
    APPEAL from the Civil District Court, Parish of Orleans — St. Paul, J.

      Omer VHiere (Denegre, Blair & Denegre, Parherson & Tobin of Counsel), for Plaintiffs in Rule and Appellees.

      Buck, Walshe & Buck for Henry J. Bruning, Defendant in Rule, Appellant. ,f

   The opinion of the court was delivered by

Watkins, J.

This is a proceeding taken by rule on the part of the plaintiff in a partition suit against Henry J. Bruning as an adjudicatee at the judicial sale of a portion of the realty that was sold, and we have made the following extract from the brief of appellant’s counsel as containing a correct statement of facts, and to which counsel for appellee assents, viz:

“In this partition suit, under a judgment ordering the property “ owned in common between the parties, plaintiff and defendant, to be “ sold at auction in order to effect a partition, there was adjudicated “ to Henry J. Bruning at the auction sale, two of the properties de“'seribed in the proceedings herein. Bruning declining to accept title “ offered, a rule was taken against him, by the parties in interest to “ compel him to comply with thef adjudication and accept the title. To “ this rule, Bruning filed a return setting up ‘that no valid, clear and “unencumbered title had been tendered to this respondent, especially “ in this:
“ ‘ First. That the interest of the minor, Edmond Richardson, in “ and to the property was not legally divested by said adjudication and “ proceeding herein had.
“ ‘ Second. That the interest in said property of Mrs. Ella O. Rich“ardson is burdened with a minor’s mortgage, and subject to which “this respondent can not be compelled to take title; and that the no- “ tarial act of sale proposed to be made to this respondent contains “ terms and conditions other than those provided for in the judgment “ and advertisement of sale.’
“ On the trial, judgment was rendered in favor of plaintiffs in rule, “ condemning the defendant in rule to deposit in the registry of the “ court the amount of his bid, with seven per cent, interest from date “ of adjudication, and that upon production to the recorder of mort- “ gages of the receipt of the clerk of the court for the sum of $1975.00, “with seven per cent, interest from February 38, 1899. that the re- “ corder of mortgages should cancel from his records the inscription of “ the general mortgage against Mrs. Richardson, resulting from her “ tutorship, in so far as the property adjudicated to Mr. Bruning was “ concerned; and it further orders that if Bruning should fail to com“ply with the judgment within ten days, that there be judgment in “ favor of the parties to the partition suit and against him in the sum “ of $1975.00, with seven per cent, interest from February 2Stli, 1899, “ and five per cent, attorney’s fees. It is from this judgment that the “ defendant in rules prosecutes this appeal.”

It is shown by the record that Edmond Richardson, minor, is one of the co-owners and co-proprietors of the common property; and that his mother, Mrs. Ella O. Richardson is, likewise, a co-owner and co-proprietor, and being the natural tutrix of the minor, her undivided shard or interest is burthened and encumbered with a general mortgage in his favor.

I.

The first question for consideration is, whether a family meeting can be legally held for the purpose of recommending the sale of the minor’s interest upon terms of credit, after the sale for the purposes of a partition has been judicially decreed, upon terms of credit, and the sale has been actually made and adjudicated to the purchaser upon terms of credit.

The judgment was rendered in the partition suit on the 13th of January, 1899, and it directed and required that the property be sold at public auction on the following terms of credit, to-wit:

“ One-fourth or more cash, at the option of the purchaser, and the remainder at one, two and three years’ credit, for notes of the purchaser bearing seven per cent, interest per annum fr.om the day of sale until paid, and secured by mortgage and vendor’s lien, and all the usual and customary clauses, including five per vent, attorney’s fees in case of non-payment of the notes, etc.”

The proces verbal of sale states that on the 28th of February, 1899, the property was adjudicated on the terms that were specified in the judgment, and particularly specifying “attorney’s fees in case of suit on the notes.”

The family meeting was convened on the 7th of March, 1899, and made recommendations to the effect that, as the sale made on the 28th of February, 1899, w-as necessary to effect a partition, that it was sold for its full value, and resulted to the advantage of the minor, the terms upon which the same was made are approved as “the terms and conditions which could have been fixed for said sale.’*

The family meeting, thereupon, made an appraisement of the property, then follows this further recommendation, viz:

“ Wherefore, they advise the court to conform and ratify the aforesaid sale, and to authorize the tutrix of the minor Edmond Richardson to sell at private sale, the aforesaid property for the price of the appraisement as fixed by the judgment of partition, etc.” _

The foregoing deliberations of the family meeting were homologated on the same date that the recommendations were made; but the decree followed the averments of the petition of the tutrix, and confirmed and ratified the sale as made by the auctioneer, and made no reference to the recommendations as to the making cff a private sale.

In the chapter of the Code which treats of “In What Manner the Judicial Partition Is Made”, the following provision is found, viz:

“ The judge who decides on a suit for a partition and on the mode of effecting it, has a right to regulate this mode as may appear to him most convenient and most advantageous for the general interest of the co-heirs, etc.” R. C. C., 1336.

But that article is restricted in its effect to partitions made between majors, exclusively, as will appear from the following, viz:

“ When the effects of a succession are to be sold, in order to effect a partition, if all the heirs of the deceased are absent, minors or interdicted, the judge may, at the instance of the tutors and curators of these heirs, and on the advice of the family meeting of those of the heirs who are minors or interdicted, order the sale to be made on certain terms of credit and on proper security, unless the payments of the debts of the succession require that the sale he made for cash.” R. C. C., 1341 (1263).

Those provisions have been frequently interpreted by this court, and held to be imperative, leaving in the judge no discretion to act without such authorization. Succession of Morgan, 12 Ann., 153; In Dixon Applying for a Monition, 6 Ann., 754; Fix vs. Koepke, 44 Ann., 746.

But while those decisions meet with our approval and concurrence, we have a somewhat different question to deal with herein, and that is, whether the family meeting was legally capacitated to subsequently ratify and approve the terms upon which the sale was made — the same having been fixed by the judge in an order directing the partition, and having been found by the family meeting advantageous to the minors.

It appears that the family meeting was convened immediately after the adjudication of the property, aud almost, contemporaneously therewith and before the proces verbal of adjudication had been filed by the auctioneer, or any demand had been made on the adjudicatee for the payment of the price, or any title had been tendered to him — the proces verbal of the proceedings of the family meeting having been homologated by the judge on the day upon which they were adopted.

In view of these facts, the proceedings of the family meeting were, for all necessary purposes, a part of the proceedings for the sale. They were practically simultaneous; so much so, that they may be considered as one and the same; that is to say, that the proceedings of the family meeting wgre read into the- adjudication which is represented by the proces verbal of sale which was subsequently executed by the auctioneer and filed. So that when the title was thereafter tendered to the purchaser, the tender must be considered as having been based both upon the proces verbal oí sale and the proces verbal of the proceedings of the family meeting adopting the terms of sale.

Had the family meeting been convened subsequent to the- execution, delivery and acceptance of title, the question presented might have been somewhat different; though we are not prepared to say that even then the ratification would not have been complete.

It appears that the family meeting not only advised the court to confirm and ratify the aforesaid sale upon the terms stated in the decree, but it, also, authorized “the tutrix of the minor, Edmond Richardson, to sell at private sale the aforesaid property for the price of the appraisement, as fixed by the judgment of partition.”

Under the law the family meeting is authorized to make such a recommendation, because it declares:

“ When two or more persons, some or all of whom are minors, hold property in common, and it is the wish of any one of them, or, if a minor represented by his tutor or tutrix, to effect a partition on the advice of a family meeting, duly convened according to law, to represent the minor or minors, said property may be sold at private sale for its appraised value, said appraisement to be made and the terms of said sale to be fixed by the family meeting, and said proceedings to be homologated by the judge of probates of the parish in which the said minor resides.”

Section 1, Act -25 of 1878.

Of that act and a partition made thereunder at private sale, this court said in Duruty vs. Musacchia; 42 Ann., 357:

“Defendant further objects to the validity of Mrs. Durruty’s title, “.because derived, in part, from minors whose-'title was divested by “ proceedings conforming to the requirements of law. It was a' private “ sale, made to effect a partition under the special provisions of Act “ No. 25 of 1878.
“ We have critically examined the proceedings, and find them to conform, in every respect, with the requirements of the Act.”

A similar sale was approved in Bruhn vs. Building Association, 42nd Ann., 482; and again in Dauterive vs. Shaw, 47th Ann., 882;

From that law, and the decisions making application of it, we conclude that if the sale as made at public auction under the order of court, was, in any respect, irregular, that it would be in the power of the tutrix to ratify and confirm the same by private sale. But, in our opinion, same is not necessary.

Under these circumstances, we think the object of the law has been substantially attained, and that the rights of the adjudicatee will be fully protected by the decree of this court, ratifying and approving of the sale as made.

We are, therefore, of the opinion, that the sale had the legal effect of devesting the interest of the minor in the common property, and passed a clear title to the purchaser.

II.

The decree of the judge a quo making the plaintiffs’ rule against the adjudicatee absolute and compelling him to,comply with his bid “at the price and or»' the terms and conditions set forth in the proces verbal of the auctioneer”, decrees (1) that he shall “deposit in the registry of the court the amount of his bid, with seven per cení, interest from the 29th of March, 1899”; (2) that on the production to the recorder of mortgages of the receipt of the clerk of this (the District) court for the sum of $1975.00, with seven per cent, interest from the 29th of March, 1899, the said recorder of mortgages shall cancel the mortgage against Mrs. Ella Oliver Richardson resulting from her confirmation as natural tutrix of her minor children Susie and Edmond Richardson in the sum of $123,189.09, but in so far only as said inscription affects the property; (3) that “should said Briming fail to comply with the above within ten days, that there be judgment in favor of thé parties in this partition suit, and against him, the said Henry J. Bruning, in the sum of $1075.00, with seven per cent interest from the 28th of February, 1899, and five per cent, attorney’s fees.” '

On this state of facts, the contention of appellant’s counsel is, that the decree appealed from is essentially different from the rule laid down by this court in the following cases:

Koehl vs. Solari, 47th Ann., 890; Succession of Aron, 48 Ann., 821; and Succession of Allen, 48 Ann., 1244.

We make the following extract from his brief, to-wit:

“The judgment appealed from differs from the rule laid down in those cases in this important respect, that while they -authorize the amount of the bid to be deposited in the registry of the court, there is no provision that any portion of it shall so remain until re-invested, or even that it shall remain subject to the orders of the court; and nothing would prevent the parties in interest from withdrawing the deposit so made without any further action of the court.
“ Furthermore, the judgment appealed from requires that the entire amount of the adjudication be deposited in court; whereas under the order of sale and the adjudication, the purchaser has the option of paying one-fourth or morq cash and the remainder at one, two and three years’ credit represented by notes bearing seven per cent interest.
“ The judgment further orders that seven per cent, interest be paid upon the entire amount of the adjudication from the date thereof; whereas, under the adjudication, the purchaser is required to -pay interest only upon the credit portion.
“ The judgment directs that after the purchase price is deposited in the registry of the court, the clerk shall issue his receipt, and upon the production of this receipt, that- the recorder of mortgages is ordered to cancel the minor’s mortgage from his records in so far as the property in question is affected.
“ The recorder of mortgages is no party to this rule, and is not bound by the judgment rendered, so that there is no assurance given to the purchaser, that even should he elect to pay the entire purchase price in cash, that the recorder of mortgages would cancel the mortgage on the production of such a certificate; and he certainly would not do so if the purchaser took advantage of the terms of credit, because the recorder of mortgages is authorized to cancel only upon the production to him of the receipt of the clerk for the sum of $1975.00 with interest.”

In Koehl vs. Solari, stipfa, a similar question arose and was, by this court, decided. In that case, the decree appealed from made absolute a rule against the purchaser of property which was adjudicated to him at public auction, conformably to a judicial decree directing and requiring a partition thereof by licitation.

The decree of sale required the defendant in rule to pay the purchase price in compliance with the terms of adjudication, and ordered that the portion thereof coming to the tutrix of the minor “bo deposited in the registry of the court, and directed the cancellation of the legal mortgage of the minors resting against the property.”

Questioning- the completeness and efficacy of the cancellation of the minor’s mortgage, the purchaser appealed.

In our opinion we said upon his contention:

“ For, as counsel suggest in their brief, if the decree be literally carried out, the purchaser may find himself in possession of an encumbered undivided portion of the property.
“For, supposing the share of the proceeds coming to the minors be not invested in real estate, or in mortgages on real estate, but remain uninvested in the registry of the court, would not their mortgage remain in force upon their share in the property which the respondent acquired at partition sale?
“ This postulate rests upon the- theory that the minor’s mortgage remains upon the property until the reinvestment of the funds is actually made.
“ On the other hand, it is contended that, inasmuch as a judicial partition can be lawfully made contradictorily with the minors having an undivided interest .in real estate, it necessarily results that a partition sale extinguishes the minor’s mortgage and transfers it to the proceeds of sale, and that a different construction of the law would result in an embargo on the right of co-owners to have a partition of the common property.”

After making an examination of the authorities — and particularly Life Association vs. Hall, 33 Ann., p. 49—and applying same to the facts of that case, our opinion said:

“ Considering that the proceeds will represent the property, the shares of the respective parties in interest are transferred thereto. But to make it certain that the property shall pass free of any encumbrance, we thirds; it best that all the proceeds of sale shall be deposited in the registry of the oourt, and there remain until the amount coming to the'minors shall.be actually reinvested upon the order of court upon the recommendation of á family meeting, and the natural tutrix shall provide adequate security in place of the legal mortgage now resting upon her one undivided one-fourth interest in the property sold.
“ Otherwise there might be some risk of loss or injury to the interest of the minors. The whole proceeds being deposited in the registry of the court, the parties in interest will be concerned in the proper and speedy investment being made, and proper security furnished by the tutrix.
“In our opinion, there is no doubt of our power to deal with the proceeds of sale, as we are called on to deal with the property; and it is our conception of the law that the minors must have security at all times sufficient to cover and protect their interests.”

Thereupon, our decree amended the judgment appealed from so as “to require the entire proceeds of sale to be deposited in the registry of the court, and there remain, subject to the order of court, until the share of the minors is legally reinvested and their tutrix has furnished satisfactory security in lieu of their legal mortgage upon her interest in the property sold.”

In Succession of Allen, supra, this court dealt with á similar question, the proceeds of sale being partly cash and partly mortgage notes, and referring to our opinion in Koehl vs. Solari, with approval said:

“According to the foregoing statement, both the cash and notes ‘that are to go to the Allen heirs and Smith heirs, were, under a clause in the act (of sale) deposited in the hands of the executors’, etc., and in our opinion, same ought tó so rdmain deposited until such time as the same shall be invested for the minors in pursuance of an order of court and the recommendations of a family meeting, as a security to the title of the purchaser’s and minors’ rights as well.”

And in Succession of Aron, we again approved the doctrine announced in the Koehl case, and said:

“ If he (the purchaser) pays the entire purchase price into the registry of the court, the rights of the minor will be fixed and the funds due Mm held subject to the court’s order until such time as the tutor may give bond and secure the rights of said minor.”

In view of the foregoing authorities and the law, we think the rights of the minor will be protected by reforming the decree in this case so as to conform thereto.

It is, therefore, ordered and decreed that the judgment appealed from be so amended as to require the entire proceeds of sale — money and notes — to be deposited in the registry of the court, and there remain subject to the order of court, until the share of the minor therein shall be legally reinvested, and Ms tutrix shall furnish satisfactory security in lieu of his legal mortgage upon her interest in the property sold".

It is further ordered and decreed, that, in case the purchaser shall .exercise the option of paying only a portion of the price in cash, he shall execute and deliver his promissory notes due at one, two and three years with seven per cent, interest from the date of sale until paid, with mortgage and vendor’s lien to be retained upon the property sold as security for the payment of the 'deferred portions of the purchase price; and further stipulating in the act of sale all other usual and customary clauses, including his obligation to pay five per cent. attorney’s fees upon the amount due, in case of legal proceedings becoming necessary in the collection of the notes.

It is further ordered, that in. all other respects the decree appealed from be reversed, and that the costs of appeal be taxed against the plaintiffs and appellees.


author: Breaux, J.

text:
    No. 13,223.
    State of Louisiana et al. vs. Cumberland Telephone and Telegraph Company.
    Syllabus.
    1. The land of the State, though appropriated to the use of a canal, such as the New Basin canal, may, under Statute 124 of 1880, be used by a telephone company; provided, the ordinary use of the company does not interfere in any manner, or in the least obstruct the use of the State.

      2. There was no complaint made of interference by defendant company, but a claim for compensation for the use, which is not sanctioned by law.
    APPEAL from the Civil District Court, Parish of Orleans — Theard,
    ' Milton J. Cunningham, Attorney General, (Branch K. Miller of Counsel), for Plaintiffs, Appellants.

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

Breaux, J.

Plaintiffs sought to have telephone poles removed which the defendant has erected within about one hundred and twenty feet of the centre line of the new basin canal.

The history of the title of the State, for thé purposes of this suit, dates back to March 5th, 1831, at which time a statute of incorporation was enacted by the Legislature, incorporating the subscribers to the New Orleans Canal and Banking Company and by Section 8 of the statute áuthoriziíig the company to construct a canal of the width of sixty feet at the top of the water, and of sufficient depth to admit vessels drawing six feet of water.

At the expiration of thirty-five years after its passage, by Section 26 of the statute, the property of the canal and road, to the extent of one hundred and twenty feet, on each side of the canal, became vested in the State of Louisiana.

Under Statute 144 of 1888, a board of control has the general management of the canal and shell road.

The complaint of plaintiffs is, that about February 1st, 1894, the “Great Southern Telephone and Telegraph Company”, without authority from any one, established along the west side of the canal, a line of telegraph wires, 'extending from the intersection of the canal with Claiborne street, to a place near Metairie Ridge.

That in 1898, about May, the Cumberland Telephone and Telegraph Company succeeded to all the rights and privileges of the Great Southern Telephone and Telegraph Company and assumed all of its liabilities and responsibilities, and that in consequence of the former’s use of the property and of its assumption of responsibility, it is indebted to the plaintiffs in the sum of six hundred dollars a ye.ar, or in a total of twenty-seven hundred and seventy-five dollars; that recently the company has undertaken to locate additional poles and erect new lines, and has cut trees and made excavations upon the property.

Plaintiffs sued out an injunction before the District Court to einjoin and restrain' the Cumberland Telephone and Telegraph Company from erecting any poles or constructing any lines of telephone wire, or from making any excavations, cutting any trees on the property and asked judgment in the sum before stated for the use of the property.

The defendant joined issue with plaintiffs, and here urges that the Statute 124 of 1880 was sufficient authority for locating as it has, its telephone lines over plaintiff’s lands, and avers that it has not violated the condition of the State concession by interfering with the ordinary use of the canal and shell road.

If the decision bei against defendant on this point, then the defendant contends that the State and the canal board permitted the telephone company to erect its poles and establish its line on plaintiff’s land, and that it is not possible after acquiescence, as alleged, for the State to recover compensation for the use alleged.

And lastly, defendant argues that the value to the State of the very limited space occupied by its poles and wires is very slight.

Before taking up the argument, we desire to state, that Section 696 of the Revised Statutes contains a provision under which telegraph companies may construct and maintain telegraph lines over State land; and this article was amended by Statute 124 of 1880, enlarging the permission, so as to include telephone companies within its terms.

The amended statute contains a provision, part of which sets forth, that in the event of the failure of a company, on application, to secure the needed right of way upon just terms, then the company may expropriate the right of way.

The judge of the District Court decided against plaintiffs, the State of Louisiana and the Board of Control of the New Basin Canal and Shell Road, rejecting plaintiff’s demand and dissolving the writ of injunction, herein issued, without damages.

From the judgment, plaintiffs prosecute this appeal.

We have read plaintiff’s brief, and we did not find anything in it indicating that plaintiffs insist on that portion of their petition which asks for relief by injunction, nor have we discovered that the complaint about excavating works and the cutting of trees of plaintiffs, is insisted upon. The evidence any way would no.t sustain the insistence.

1st. In answer to defendant’s claim to a right of way allowed by the statute to which we have referred supra, plaintiffs contend that the lands referred to in the statute as land over which defendant’s line may be constructed are the public lands of the S tate, and not property devoted to a particular use under her laws.

The words “State lands”, as used in the article of the Revised Statutes and in the amending act, are broad enough, as we construe them, to embrace the State lands adjacent to the new basin canal. We have not found that these words include only “public lands” open to settlement or subject to sale as “public lands” by the government.

We take it, that the terms of the law denote the intention to use the words in a broad, and not in a strict sense.

The land along this canal, we understand, can well be used by this company without interfering with the use of it which the State makes. Non-interference with the State’s use is the condition.

It may well be said that there are lands appropriated by the State, for purposes which the companies would have to respect, even though they did not interfere with the State’s use.

It is true, as contended by plaintiffs, that land reserved for any purpose, ceases to be a part of “public land” under the general government, and that in all grants or proclamations the portion reserved, is always excepted, although the excepted land is not specifically mentioned; citing in support a number of decisions.

The sale of public lands by the general government is inconsistent with the idea of the reservation made by the government for its purpose, an inconsistency, however, which does not arise in the case before us for decision. It is different between the general government and the State government and for that reason the decisions cited are not in point.

As relates to the canal, there is no possible inconsistency or hindrance of any kind in the use granted, subject as it is, to the right of plaintiffs, as stated in the statute (124 of 1880).

We pass to the construction placed on this act by plaintiffs’ counsel, as relates to expropriation, their contention being that the statute before cited relates only to such property as can be made the subject of expropriation proceedings.

The amending statute, as contended by plaintiffs, does contain a proviso, a portion o' which sets forth, that on failure of the company to obtain the needed right, then the company may expropriate. The proviso does not defeat the purpose of the statute as relates to lands of the State. The- statute refers to private individuals only, in so far as expropriation is mentioned.

There remains in addition to the power of expropriation granted by its terms, the provision of the statute granting permission to telegraph and telephone companies, in the following words:

“Telegraph and telephone companies shall be entitled to the right of way over all lands belonging to the State, provided,” etc.

This, in our judgment, is the extent of the exercise of a right the statute chose to give over State land.

Plaintiffs, in the second place, attack the Statute of 1880 as unconstitutional, being, they contend, in violation of Article 56 of the Constitution of 1879, prohibtiing the “loan ” “pledge ” or “grant” to any person, association or corporation, public or private, of the funds, credit, property or thing of value to the State.

The statute in question contains, as we taire it, a contemporaneous construction placed on the article 56 of the Constitution of 1879 by the Legislature, and, as such, is entitled to some weight.

Cantemporanea expositio est fortissinia in lege, terse and admirable expression of the civil law.

In the face of the article, a short time after the constitutional convention held in 1879 had adjourned, the Legislature adopted this statute.

Moreover, as an original question, we have not discovered that the statute is at all within the prohibition of the constitution.

The State, as we take it, was not divested of .its power to permit a telephone company to use an insignificant portion of her lands to plant its poles and string its wires. It is not a “loan”, “pledge” or “grant”, as we read the statute but a mere permission to use for purposes already stated, if the use is not in any manner to the State’s prejudice.

We have not found that the power of the State is so restrained that it can not permit a quasi public corporation to string its wires over her lands.

If we were to grant plaintiffs’ proposition, useful improvements would have to stop at every line dividing private from State land.

We take, up for a moment the following ground of defense, to which (although our views sustain defendant on other grounds) we do not assent. The ground is, if the provision in the Act of 1880 as relates to compensation and expropriation proceedings, includes the land of the State, then defendant contends, the principles regarding occupancy of land; subject to expropriation, equally apply, and plaintiffs are amenable to the doctrine of acquiescence and estoppel laid down in the suit of St. Julien vs. Morgan’s Louisiana & Tex. R. R., 35 Ann., 922, that the State and its officers having remained silent and allowed defendant to plant its poles and string its wires, the State is estopped.

We agree with the learned Attorney General and his able/ associate counsel that the St. Julien case has no bearing. The sovereign can not be placed in an attitude of acquiescing in any invasion of its property; it can not be bound as a person would be, except where it chooses to lay aside its. sovereign power. The State is surely not subject to the principle of acquiescence applying to individuals who remain silent and permit the use of their property.

We arrive at this conclusion, because there dan be no question here, as relates to the State, of compensation or expropriation.

The question relates only to permission to use land vel non.

Other propositions have been argued. We passed them without comment, for the reason, that, from our point of view, they have no bearing, It would have been different had we concluded that the State is, as plaintiffs contend, restrained by the constitution from granting' the “permit” for which the defendant contends.

In the brief,- decisions have been cited. They would each have been reviewed had we taken up other propositions than those particularly considered by us, which lead to the conclusion, in our judgment, that the decree appealed from should be affirmed.

For the reasons assigned, the judgment appealed from is affirmed.

Rehearing refused.