Volume 155 — Louisiana Reports

<p> {Byllahus l)y Editorial Btaf.) </p> <p>I. Taxation <&wkey;>776 — Tax deeds and other deeds in chain of title held not to embrace lands sought to be recovered.</p> <p>In a suit to recover realty, deeds in defendant’s chain of title, including tax deeds, held not to embrace the lands in controversy.</p> <p>2. Auctions and auctioneers <@=36 — For adjudication after sale to vest title, auctioneer must have written authority.</p> <p>While title vests in the adjudicatee by adjudication by an auctioneer, and no deed is necessary, in view of Oiv. Code, arts. 2608, 2623, it is necessary that the auctioneer have written authority to offer the property at auction, in view of article 2060, and hence an owner was not divested of title by an adjudication following an auction sale of property to satisfy his creditors, where it did not appear that the auctioneer had written authority to offer the property at auction.</p> <p>3. Auctions and auctioneers &wkey;>6 — Recitals in notarial act and in deed held not sufficient to show auctioneer’s written authority in absence of acceptance of title, by purchaser.</p> <p>Where an owner of property agreed to sell it and distribute the proceeds for the benefit of his creditors, and the property was sold at auction, and part of the proceeds distributed, recitals in the notarial act of distribution and in a deed to part of the land that the debtor caused his property to be offered at auction, held insufficient as written evidence of the auctioneer’s authority to offer another part, in absence of a showing that claimed purchaser had accepted title, he not even being a party to such instruments.</p> <p>4. Taxation <@=3805(2) — Three-year prescription held insufficient to support title under tax sale.</p> <p>The 3-year prescription provided by Const. 1898, art. 233, held insufficient to support title under a tax sale, where it did not appear that the property in controversy was embraced in such sale.</p> <p>5. Taxation <&wkey;803 — Prescriptions under act relating to forfeitures held inapplicable to tax sale.</p> <p>The 3-year prescription provided by Act No. 185 of 1904, is applicable only to sales based on a forfeiture, or which convey or purport to convey an interest or title to property acquired or pretended to have been acquired by the state, or one of its political subdivisions by such means, whether the property be actually forfeited or not, and cannot be employed in support of title not based upon a forfeiture, but on sale of land for taxes due thereon, confirmed by the auditor of public accounts by issuance of deed, under Act No. 47 of 1873, § 6.</p> <p>6. Adverse possession <@=322 — Prescription; grazing cattle on uninclosed land insufficient to support 30-year prescription; “actual possession.”</p> <p>Possession of uninclosed land, consisting merely in permitting cattle to graze thereon, where the cattle of others also had access to the land, held not “actual possession” within the 30-year prescription, under Oiv. Code, arts. 3499 et seq. and 3493.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Actual" Possession.]</p> <p>7. Adverse possession <&wkey;7l(l) — Prescription; to acquire title under 10-year-period of prescription the holding must be under title transferring property.</p> <p>One who does not hold under a title that transfers the property cannot acquire title thereto under the 10-year period of prescription, provided for by Oiv. Code, arts. 3479, 3482, 3487.</p> <p>8. Real actions <&wkey;8(2)— Petitory action; when occupancy in badl faith must be shown to recover rent prior to institution of suit for realty stated.</p> <p>Where claimants of property also claimed rents for occupying the property prior to institution of suit, it was incumbent on claimants to prove that the occupant was a possessor in bad faith, under Oiv. Code, arts. 502, 3453.</p> <p>9. Real actions <&wkey;8(4) — Petitory action; occupant having knowledge of plaintiff’s claims held a possessor in bad faith.</p> <p>As in a suit to recover realty and rents prior to institution of suit, the question is whether ■ the occupancy was in good or bad faith, the fact that the occupant had knowledge of plaintiff’s claims obtained from a suit in which no notice of lis pendens was filed", held sufficient to show bad faith, although he was not a party to the suit, in view of Act No. 22 of 1904, and Giv. Code, art. 503.</p> <p>Í0. Real actions <&wkey;8(4) — Petitory action; claimants of property held entitled to fair rental value of property.</p> <p>Where, in a suit to recover realty, plaintiffs sued for rents and not for the- actual fruits produced by the property, they were entitled to a judgment equal to the fair rental value of the property.</p>

<p>Appeal from Twenty-First Judicial District Court, Parish of Iberville; G. K. Sehwing, Judge.</p> <p>Suit by Philip A. Wilbert against Frederick Wilbert and others. From a judgment of dismissal, plaintiff appeals.</p>

' Appeal from Twenty-Third Judicial District Court, Parish of St. Mary; Percy Saint, Judge. Suit by George T. Lewig against Mrs, Florence B. Lewis. Defendant’s exception of no right or cause of action was sustained, and plaintiff appeals. On motion to dismiss appeal.

<p>Appeal from First Judicial District Court, Parish of Caddo; T. F. Bell, Judge.</p> <p>Action by J. W. White against R. L. Crook. Judgment for defendant, and plaintiff appeals.</p>

Judicial District Court, Parish of Jefferson; H. N. Gautier, Judge. Suit by Meloncy C. Soniat and others against J. E. White, Tax Collector, and others. From a judgment maintaining exceptions of no right or cause of action, recalling a rule nisi for an injunction, and dismissing plaintiffs’ suit, they appeal.

Hooe and J. A. Williams, Judges. Suit by Mrs. Hattie D. Beuhler, tutrix, against the Beuhler Realty Company, Incorporated, for the appointment of a receiver. Judgment for defendant, and plaintiff appeals.

<p> (Syllabus by Editorial Staff.) </p> <p>Schools and school districts <&wkey;97(4) — Taxpayers held not entitled to sue to set aside school district bond election after expiration of 60 days.</p> <p>Under Const. 1921, art. 14, § 14, providing that after 60 days from the promulgation of the result of an election no court shall have authority to inquire into the legality thereof, taxpayers could not after the expiration of 60 days sue to set' aside an election authorizing a bond issue for a school district created from parts of separate .parishes under Act No. 152 of 1920, notwithstanding Const. 189S and 1913, art. 250, and Const. 1921, art. 12, § 10.</p> <p>O’Niell, C. J., and Land and Brunot, JJ., dissenting.</p>

Helena; Joseph L. Golsan, Judge. Action by' John R. Womack against William M. Nettles to contest the promulgated result of a primary election for the office of sheriff. From a judgment of dismissal, plaintiff appeals.

Cage, Judge. Action by the New Orleans Terminal Company against the Pontchartrain Railroad Company. Judgment for defendant on its exception of no cause of action, and plaintiff appeals.

<p>Appeal from Third Judicial District Court, Parish of Claiborne; J. E. Reynolds; Judge.</p> <p>Bill Alexander was convicted of murder, and he appeals.</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; T. F. Bell, Judge.</p> <p>Action by J. E. Durrett against W. F. Woods. Judgment for defendant, and plaintiff appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>I.Insurance &wkey;>58l — Loss payable clause in ■ policy issued to mortgagee held effective.</p> <p>In an action brought by a mortgagee on a policy covering automobiles, a clause incorporated in the policy as a warranty und'er the subhead “incumbraneés,” stating after a recital of the incumbrances that the loss was payable to plaintiff or the holders of the mortgage notes, held sufficient as a loss payable clause and binding on insurer.</p> <p>2. Insurance &wkey;>ll5(5) — Mortgagee has Insurable Interest in mortgagor’s property.</p> <p>The mortgagee has an insurable interest in the property of the mortgagor.</p> <p>On Rehearing.</p> <p>3. Insurance <&wkey;3l I (3)— Policy taken out by mortgagee held not voided by policy taken out by owner of mortgaged property.</p> <p>Where the holder of a mortgage covering certain automobiles procured an insurance policy to be issued thereon, paying the premium out of its own funds, though it had the right to claim reimbursement thereof from the owner in accordance with the mortgage, and it appeared that subsequently the owner also took out insurance on the same property, held, that such second policy did not void the mortgagee’s policy as double insurance; the mortgagee having an insurable interest, and acting in its own behalf,- the insurer knowing what such insurable interest was, and issuing the policy to protect that interest.</p> <p>4. Judgment <&wkey;>253(l) — Recovery of amount larger than that asked for in original petition held not error in view of judicial admissions.</p> <p>Where, in an action on a policy, plaintiff filed an amended petition increasing the original amount sued for after argument and submission of, the case, held, that it was not error to permit recovery in the increased amount; defendant having admitted that plaintiff’s claim amounted to such sum.</p> <p>O’Niell, C. J., and Brunot, J., dissenting on rehearing.</p>

<p>Appeal from Juvenile Court, Parish of Pointe Coupee; William C. Carruth, Judge.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Mines and minerals <&wkey;78(2) — Development of one of two separately described tracts leased as one held sufficient to prevent forfeiture of oil lease.</p> <p>In a suit to cancel an oil lease for failure to develop a portion of the tract leased which was separated from the portion actually developed by a railroad traek and right of way, where it appeared that the two bodies of land had been leased as one tract, but described separately, development of one of them was a compliance with the contract as to the entire lease.</p> <p>2. Mines and minerals <§=378(2) — Development held sufficient to prevent cancellation.</p> <p>Where 17 producing wells had been /drilled on leased property, but all on one of two tracts and the wells drilled in the portion lying toward the tract not developed were less productive than the others, held, that the development was sufficient to prevent cancellation, there being no danger of others drawing from the undeveloped land any oil or gas beneath its surface.</p>

<p>Appeal from Thirteenth Judicial District Oourt, Parish of Rapides; Jas. Andrews, Judge.</p> <p>Action by Susan McQuarrin against the Alexandria & Western Railway Company. Judgment for defendant, and plaintiff appeals.</p>

<p> (Syllabus by JMitonal Staff.) </p> <p>I.Schools and school districts &wkey;>l03(2) — Evidence of voters as to how they would have voted at school district election, if held, was inadmissible.</p> <p>In a suit to set aside a school tax voted in a district on the ground that no election was held in one of the preempts of the district, it was error to allow voters on a trial of the case in a different ward, and some 60 days after the election, to testify how they would have voted if the election had been held.</p> <p>2. Elections <&wkey;293(l) — What evidence admissible under statute as to how-voters deprived of right to vote would have voted stated.</p> <p>It is not the purpose of Act No. 256 of 1910, § 13, and Act No. 46 of 1921 (Extra Sess.) § 20, relating to the time when polls shall be open, to allow voters who were deprived of their votes on account of the polls being closed to testify on a contest as to how they would have voted;' all that is necessary being to establish on the contest that a sufficient number of voters had been deprived of their right to vote to have changed the result if permitted to vote.</p> <p>3. Schools and school districts <3&wkey;l03(2) — Tax held nullity because voters sufficient in number and amount to change result were deprived of right to vote.</p> <p>Where, in a suit to set aside a school tax election on the ground that no election was held in one of the voting precincts, the evidence showed that the' number of voters and the amount deprived of right to vote was sufficient to overcome the number of voters and amount of taxes carried at other precinct, the tai was a nullity.</p>

<p>Appeal from Sixth Judicial District Court, Parish of Ouachita; Fred M. Odom, Judge.</p> <p>Action by J. D,. Wilkins against Oscar Nelson and another. Judgment for defendants, and plaintiff appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Attorney and client &wkey;>l 66 (3) — Attorney’s claim as to amount mf contingent fee held sustained by evidence. '■</p> <p>In a client’s action against the attorney to recover an amount retained in excess of the fee which the client claimed was to be charged in an action for wrongful death, plaintiff alleging the contract to be one for 20 per cent, of the recovery, and defendant claiming that the contract was for 50 per cent., no fee to be charged in case of no recovery, held, that the contract as asserted by defendant was sufficiently established by the evidence.</p> <p>2. Attorney and client <&wkey;>!44 — When contract for services on contingent fee basis subject to correction by courts stated.</p> <p>The members of the bar áre in a certain sense officers of the court, and their contracts for professional services on a contingent fee basis in personal injury actions may not as a matter of law be regarded as not subject to inquiry and correction by the courts if found unreasonable, greatly in excess of the value of the services rendered, and beyond the ability of the client to pay.</p> <p>3. Attorney and client <&wkey;l47 — Contingent fee of 50 per cent, not unreasonable in death action.</p> <p>In an* action for wrongful death, where after two trials a recovery of $10,600 against a, street railway company was had, a fee of 50 per cent, was not unreasonable, the attorney being obligated for costs.</p> <p>4. Guardian and ward <&wkey;49 — Tutorship; minor’s tutor held authorized to contract attorney’s fee contingent on recovery for father’s death.</p> <p>A mother, as the tutrix of her minor son, had authority to employ counsel to represent him i,n action to recover for the death of the father, and was authorized to contract on his behalf for a 50 per cent, attorney’s fee contingent on recovery.</p>

<p>Appeal from Twenty-Sixth Judicial District Court, Parish of Washington; Prentiss B. Carter, Judge.</p> <p>Wilber Noble was convicted of violating the “age of consent” law, and he</p> <p>appeals.</p>

<p>Appeal from Nineteenth Judicial District Court, Parish of St. Martin; James Simon, Judge.</p> <p>Petitory action by Jean Baptiste Maisonneuve and others against Francis K. Martin and others. Judgment for plaintiffs, and defendants appeal.</p>

A. Williams, Judge. Executory proceedings by S. G. Sample against G. W. Elliott, wherein F. L. Suffern' intervened. A writ of injunction was issded at intervener’s instance, and plaintiff appeals.

<p> (Syllabus by Editorial Staff.) </p> <p>Í. Municipal corporations <&wkey;>705(IO) — Pedestrian’s negligence held proximate cause of collision with automobile.</p> <p>Where a policeman, on a - dark night and during a high'wind and heavy rain, while crossing a street at a place different from the regular crossing, and holding an umbrella over his head, was struck by defendant’s automobile, driven at a moderate rate of speed, with jail lights burning, plaintiff not observing the approach of the ear and having nearly reached the curbing when struck by the right front fender and light of the automobile, JieZcZ.that, plaintiff’s negligence being the proximate cause of the accident, a dismissal of the suit was proper.</p> <p>2. Municipal corporations <&wkey;705((0) — Last clear chance doctrine held inapplicable to striking of pedestrian by automobile on dark rainy night.</p> <p>Where a policeman on a dark night and during a high wind and heavy rain, while crossing a street at a place different from the regular crossing, and holding an umbrella over his head, was struck by defendant’s automobile, driving at a moderate rate of speed, with all lights burning, plaintiff not observing the approach of the car, and having nearly reached the curbing when struck by the right front fender and light pf the automobile, held that the doctrine of the last clear chance was inapplicable.</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; E. P. Mills, Judge.</p> <p>Action by the Bermuda Stock Farms Company against the Gilliland Oil Company, and others. Judgment of dismissal, and plaintiff appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Descent and distribution <&wkey;>90(4) — Succession; evidence creating mere suspicion insufficient to annul sale of realty under statute as a donation.</p> <p>Under Oiv. Code, art. 2444, placing on plaintiffs, in a suit to set aside a sale of immovable property by parents to children as a donation in disguise, the burden of proving that no price was paid or that the price was below one-fourth of the real valu.e at-the time of the sale, evidence which merely'easts a suspicion on the sale is insufficient.</p> <p>2. Descent and distribution <&wkey;>90(4) — Succession; convincing proof necessary to be ad-</p> <p>■ duced by forced heirs to annul sale of ancestors as in fraud of rights.</p> <p>The law does‘not favor actions by 'forced heirs' to undo transactions of their ancestors as done in fraud of their rights, and such actions can succeed only where the proof adduced in support thereof is convincing.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Criminal law ill! (3) — Uncontradicted allegations of motion for continuance in hill of exceptions must be taken as true.</p> <p>The allegations of a motion for a continuance made part of a bill of exceptions on appeal in a criminal prosecution, standing uncontradicted, must be taken as true.</p> <p>2. Criminal law <&wkey;>603(2) — Allegations in motion for continuance need not make out complete defense.</p> <p>A motion for a continuance in a criminal case need not contain allegations sufficient if true to, make out a complete defense.</p> <p>3. Criminal law &wkey;j603(2) — Refusal of continuance for absence of witness held error.</p> <p>Where, in a prosecution for assault by willfully shooting, defendant moved for continuance for the absence of a witness, setting forth the name and residence of the witness, the character and materiality of his testimony, the exercise of proper diligence, and ability to procure the attendance of the witness if the trial was deferred, it was error to refuse a continuance without reasons given therefor.</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; J. H. Stephens, Judge.</p> <p>Action by the Texas Company against "W. G. Hudson and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from Third Judicial District Court, Parish of Claiborne; J. E. Reynolds, Judge.</p> <p>Suit by the Standard Oil Company of Louisiana against Talmadge Kinnebrew. and others.- Judgment for plaintiff, and defendants appeal. ,</p>

Cage, Judge. Proceeding by Mrs. Fannie Krebs Pelham to be appointed tutrix of Marion Pelham,- opposed by Nathan H. Feitel, executor of the will of Mrs. Henrietta Gaupp. From a judgment for plaintiff, the executor appeals, and from an order requiring plaintiff to give bond, she appeals.

Application by Joseph Damico for appointment as administrator of the succession of Jake Damico, deceased, to which Armantine Roland, widow, and others, filed oppositions. From a judgment appointing the opponent named, Joseph and Antonino Damico appeal.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Action <©=^62 — Suit to set aside tax deed not premature because previous suit for same object abandoned without paying costs.</p> <p>Under Code Prac. art. 49-2, providing that after discontinuance plaintiff may bring suit anew, if he has paid costs, and article 536, providing that nonsuit may be entered when plaintiff fails to appear, but that such judgment cannot be pleaded as res judicata if costs have been paid, a suit to have a tax title decreed a nullity was not premature because plaintiff had failed to pay costs in another suit between the same parties which had been abandoned under Act No. 107 of 1S98.</p> <p>2. Judgment t©=»570(l2) — Decree sustaining plea of abandonment held not res judicata.</p> <p>A decree sustaining a plea in abandonment, in conformity with Oiv. Code, art. 3519, as amended by Act No. 107 of 1898, but not deciding any controversy between the parties, was pot available as estoppel or res judicata in a subsequent suit.</p> <p>3. Appeal and error <&wkey;l83 — After trial on appeal on theory that slander of title was involved, defendant could not urge that suit was improper to try title.</p> <p>Where a suit was tried as one in jactitation in which slander was admitted, and in which validity of defendant’s title .was submitted for decision, defendant, on appeal by plaintiff praying for affirmance of the judgment, which recognized defendant’s title, was not in a position to urge that plaintiff’s suit was not the proper proceeding to try defendant’s title.</p> <p>4. Constitutional law &wkey;>315 — 'Taxation 805(4) — Attack on tax title not prescribed, where tax debtor’s possession uninterrupted.</p> <p>Where plaintiff in a suit to annul defendant’s tax title had always remained in possession through himself and his authors, and paid taxes, the tax title was not protected by prescription, since to so hold would be a taking of property without due process.</p> <p>5. Taxation <&wkey;805(3) — (Prescription "not operative in tax title holder’s favor, where tax sale invalid. /</p> <p>Where, in a suit to annul a tax title, there was a dual assessment of the property claimed by defendant, and a prior payment of taxes thereon, which, under Const. 1898, art. 233, struck the tax collector’s sale with nullity, prescriptions under such article could not operate in defendant’s favor.</p>

■ Appeal from -Civil District Court, Parish of Orleans; Ered D. King, Judge. Suit by the Southern Pine Association against the Board of Assessors of the Parish of Orleans and others. Judgment for plaintiff, and defendants appeal.