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(100 8o.) ied by affidavit, showing each item sold by We find no error in the record, and the plaintiff to the defendant. The defendant judgment is affirmed. filed an affidavit denying the correctness of Affirmed. the account and disputed each item in it. The plaintiff on his examination as a wit ANDERSON, O. J., and SAYRD and ness had this itemized statement in his hand. GARDNER, JJ., concur. It was not offered or introduced in evidence by plaintiff. He testified:

"He made this memorandum from the books; that it was correct; that he had independent

(156 La.) recollection of the transaction with Mr. Bailey

No. 24286. and the articles sold him, irrespective of that

HUMBLE. V. STEWART-GREER LUMmemorandum."

BER CO.
And he further stated:

(Supreme Court of Louisiana. April 21, 1924.) "I do not know that I could verbatim to

(Syllabus by Editorial Staff.) each and every one, but the sum and substance *** could be given by me without the Partnership On 156-Heir of partner acqui. memorandum.”

escing in sale of land by other partner held

estopped to claim it. The plaintiff's attorney asked the plaintiff Where certain land bought in name of the following question :

partnership was sold on account of firm by "Q. Just state to the jury, Mr. Griffin, the of and knowing of adverse claim of owner

one partner, the other having knowledge there. articles you sold Mr. Bailey on November 1, ship, but not asserting his claim, bis heir was 1919?"

estopped to claim property by inheritance.

O'Niell, C. J., dissenting.
And the witness referring to said memo-
randum answered as follows:

Appeal from Eighth Judicial District
"A. There was a dresser, a chifforobe, bed- Court, Parish of Franklin; S. R. Holstein,
stead, and spring, a rattan rocking chair, a Judge.
straight chair, and a wash stand. I was going
to state, if permissible, that that consists of a Suit by Mrs. Sadie Humble against the
lot of accumulations of furniture that has been Stewart-Greer Lumber Company. Judgment
bought during my period of keeping house, and for defendant, and plaintiff appeals. Af.
then the other consists of a living room suite, firmed.
which is a davenport, a library table and a
rocking chair and a straight chair and an end

W. H. Thompson, of Winnsboro, for appeltable and a little fern stand.”

lant.

Ellis & Ellis, for appellee. Thereupon the defendant moved to exclude By Division A, composed of O'NIELL, a said answer of said witness on the grounds J., and ROGERS and BRUNOT, JJ. that the witness was not qualified to tes LAND, J., of Division B, took part in this tify from the memorandum, that it was parol cause. testimony of what had been shown to have been reduced to writing, that the book of BRUNOT, J. This is a suit to recover the witness in which the entry was made a one-half interest in the lands described in was the best evidence, and that the original the petition. Plaintiff alleges that she is memorandum had not been accounted for in the daughter and sole heir of J. L. Bojes, such way as to permit secondary evidence. deceased, and that she acquired the property The court overruled the motion of the de- by inheritance from her father. She prays fendant, and the defendant then and there that she be recognized as the owner of a duly excepted.

one-half interest therein, or, in the alternaThis itemized statement was made by the tive, that she be recognized as the owner of witness; he sold each article in it to the a one-fourth interest in the property, and, defendant; the articles were delivered to in either event, that a partition thereof, by the defendant; he knew it was correct; he licitation, be ordered by the court. Defendbad personal knowledge of the items sold, ants plead the prescription of ten years. and mentioned in it. The court did not err They also plead estoppel and filed their anin allowing him to look at it, refresh his swer to the suit. The pleas of prescription memory from it, and give the foregoing tes- and estoppel were referred to the merits, and timony to the jury. Warten v. Black, 195 from a judgment rejecting plaintiff's de Ala, 93, beadnote 2, 70 South. 758; Acklen mands and dismissing the suit she has apV. Hickman, 63 Ala. 494, headnote 1, 35 Am. pealed. Rep. 54; Singleton v. Smith, 184 Ala. 199, The lands sued for consist of two tracts headnote 1, 63 South. 949; Riley v. Fletch-containing 360 acres and 40 acres respectiveer, 185 Ala. 570, headnote 1, 64 South. 85. ly.

AmFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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J. L Boies and J. F. Boies were commer- ment of a mortgage on the property for cial partners doing business under the firm $1,600. The 360-acre tract of land was sold name of J. L. Boies & Co. It appears that by J. L. Boies & Co. for $2,160, the purchase J. F. Boies acted for the firm in buying and price being represented by the vendee's asselling the lands. The lands were acquired sumption of the $1,600 mortgage thereon and for and in the name of the firm and were the payment of $560 in cash, and the 40sold by and for the account of the firm. It acre tract was transferred to a creditor in does not appear that J. F. Boies had written liquidation of an indebtedness of the firm. authority from his copartner to buy or sell Plaintift relies upon the rule of law that a the lands, but the record discloses that J. L. partnership cannot acquire or hold real esBoies knew of and advised the purchase and tate; that when real estate is purchased by sale of the lands; that he was familiar a partnership it belongs to the individuals with the firm's transactions; that he lived composing the partnership. We recognize in the immediate vicinity of the lands for the correctness of this rule, but we do not several years after the sale thereof; that he think it applies to the facts of this case. knew of the adverse claim of ownership, the For these reasons we are of the opinion adverse possession, and the cutting and re-that the judgment of the lower court is cormoving of the timber therefrom; that he rect, and it is therefore affirmed at appeldid not assert any claim of ownership to any lant's cost. part of the land, and not until after his death and the institution of this suit did his heir O'NIELL, C. J., dissents. assert a claim thereto.

The judge of the lower court did not give written reasons for the judgment rendered,

(156 La.) and the judgment itself does not indicate

No. 26415. upon what ground the dismissal of the suit is based, but we are of the opinion that it DOMINION LAND CO., Limited, v. STARK, should have rested upon the plea of estoppel.

Tax Collector, et al. "Where a sale of real estate is made by one (Supreme Court of Louisiana. April 28, of two or more joint owners, and where one

1924.) of the joint owners who did noť sign knows of the sale and makes no objection thereto,

(Syllabus by Editorial Staff.) but, on the contrary, advises it, then he is es- Levees and flood control Cam23-Sea marsh topped from claiming any part of it." Crown

held not "and" within statute imposing acreover v. Randle, 21 La. Ann. 469.

“The partners of a firm cannot plead ignorance of its transactions. The act of receive

Acreage tax, imposed under Act No. 97 of ing the whole or a part of the proceeds of 1890, § 9, on sea marsh, held illegal and un

authorized, in view of contemporaneous inthe property sold without authority amounts to a ratification of the sale, and such party is terpretation adopted by executive and legisestopped from setting up title." Baca v. Ra- lative branches of government, and followed

for many years; mos. 10 La. 420, 29 Am. Dec. 463; Thomas

sea marsh not being land

within the statute. v. Scott, 3 Rob. 256: Flower V. Jones, 7 Mart. (N. S.) 140; Raymond v. Palmer, 41

(Ed. Note. For other definitions, see Words La. Ann. 425, 6 South. 692, 17 Am. St. Rep. and Phrases, First and Second Series, Land.] 398; Landry v. Connely, 4 Rob. 127; State V. New Orleans, 105 La, 768, 30 South, 97;

Appeal from Twentieth Judicial District R. C. C. art. 3010.

Court, Parish of Lafourche; H. M. Wallis, "Where real estate is bought for and in Jr., Judge. the name of a commercial partnership, the individual members hold the legal title and the ited, against Dr. Thomas Stark, Tax Col

Suit by the Dominion Land Company, Limfirm the equitable title. The individual partners or the creditors can require the applica- lector, and others. Judgment for plaintiff, tion of such immovables to pay the partner- and defendants appeals. Affirmed. ship debts." Calder v. Creditors, 47 La. Ann.

Merrick & Schwarz and Morris B. Red346, 16 South. 872; Hall v. Sprigg, 7 Mart. (O. S.) 243, 12 Am. Dec. 506; Bernard v.

mann, all of New Orleans, and Harris Gagne, Dufour, 17 La. 596; May v. Ry., 44 La. Ann. of Houma, for appellants. 414, 10 South. 769; Mckee v. Griffin, 23 La.

Milling, Godchaux, Saal & Milling, of New Ann. 417; Case v. Beauregard, 99 U. S. 126, | Orleans, for appellee. 25 L. Ed. 370; Story on Partnerships, 88 97,

By the WHOLE COURT. 98, 360, 361; R. C. C. art. 2823.

age tax.

The record discloses that the property was LECHE, J. Plaintiff owns a large quanpurchased by the corporation for $2,000. tity of land composed of floating prairie and Four hundred dollars of the purchase price sea marsh subject to tidal overflow, situated represented an indebtedness by the vendor to along and near the Gulf of Mexico, and with J. L. Boies & Co., and for the balance of the in the territorial confines of the Atchafalaya purchase price the vendee assumed the pay- Basin levee district. The board of commis.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexos

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(100 So.) sioners of that levee district, acting by vir- , nized by this court in the case of Board of tue of section 9 of Act 97 of 1890, the statute Commissioners v. Mialegvich, 52 La. Ann. which created the district, ordered in the 1295, 27 South. 790. If then all the lands sitFear 1922, à special assessment or forced con uated within the boundaries of the Atchatribution of 24 cents per acre, to be imposed falaya Basin levee district are alluvial, what for that year and the three previous years did the Legislature mean by the proviso hereupon plaintiff's said lands, and the present inbefore quoted? There being no lands withproceeding was instituted by plaintiff to have in the district except such as are alluvial, the tax declared illegal and to perpetually why should the lawmaker have provided that enjoin the collection thereof.

the board of commissioners should not have Plaintiff contends for various reasons that the authority to levy a forced contribution there is no law authorizing the Atchafalaya in the way of an acreage tax, upon lands not Basin levee board to impose the special as- alluvial? The jurisdiction of the board did sessment or local contribution presently not extend over any territory wherein the solight to be collected upon its lands, and the lands are not alluvial and therefore to consolution of that issue depends in great meas strue the proviso according to its literal ure upon the construction which should be terms would be to hold that the lawmakers ingiven to the section of the statute, upon serted a clause in the statute, which is meanwhich the board of commissioners rests its ingless and nonsensical. It would be against authority for its action.

comity even if not contrary to ordinary rules The Atchafalaya Basin levee district was of statutory construction for a court of juscreated by Act 97, page 107, of 1890, and is tice to ascribe any such laxity to a cocomposed of all that territory in the southern ordinate department of the government actpart of Louisiana

ing within the scope of its constitutional

authority. The Legislature undoubtedly had "south of Old River and between the Mississippi river and the [bayou] Lafourche on the

a purpose in inserting the proviso under diseast, and a line down to Atchafalaya river to

mark

cussion. the north boundary of St. Martin (parish);

Almost identically the same languago is along this line to the Teche, thence down the used in section 9, p. 14, of the Act No. 13 of Teche, and thence down the Atchafalaya to 1892, creating the Lafourche Basin levee disits mouth, .." Section 1.

trict. The latter district is also formed ex. By section 9 of the act (page 111) the board clusively of alluvial lands and also contains of commissioners of the district is author a large area of sea marsh. When the latter ized

board was organized, possibly two years lat

er than the Atchafalaya Basin levee board, "to levy annually a local assessment or forced it was soon recognized as a question of great contribution of two and a half cents on each importance to both of these boards to ascerand every acre of land within said district, tain whether sea marsh and floating prairies *** which shall be placed upon the assessment rolls of the respective parishes and

were subject to the imposition of acreage taxparts of parishes of said district, and shall be es. The two districts contained a vast extent collected in the same manner and paid into of territory composed of that kind of land, the state treasury as hereinbefore provided long lines of levees had to be raised or confor the district levee tax of ten mills;

structed along the banks of the rivers sur. and provided that said assessment or forced rounding the districts, and the boards found contribution shall not be levied on lands not it necessary to avail themselves of every alluvial."

source of revenue authorized by the LegisIt thus clearly appears that the board is lature, in order to meet the tremendous cost authorized under the language of the statute of raising and constructing these levees for to impose and cause to be collected a local protection against overflow. There was a assessment or forced contribution of 242 grave doubt as to the authority of the tivo cents per acre on every acre of land within boards to impose acreage taxes on sea marsh. the confines of the district provided that it whether that doubt arose from the ambigushall not have authority to impose and cause ity of the quoted proviso contained in the sec to be collected such local assessment or

tions 9 of each of the acts creating the two forced contribution on lands not alluvial. boards, or whether it arose from other caus But it also appears with equal clearness, that

es or considerations, it is unnecessary here there are no lands within the confines of the to decide. In order to obtain an interpretadistrict that are not alluvial. Alluvial lands tion of the law on the subject, the late Edare formed by a deposit of mingled sand and ward N. Pugh, Esq., an attorney of recogmud resulting from the action of fluviatile nized ability as a jurist, and legal adviser of currents, and these terms are applied by the Lafourche Basin board, accordingly geologists to sedimentary deposits such as

wrote to the auditor of public accounts, the occur in the valleys of large rivers. Indeed chief revenue officer of the state. The audiit is not questioned that all the lands situated tor in turn wrote to the Attorney General of in the Atchafalaya Basin levee district are the state, and, though the answer of the Atalluvial. That fact was incidentally recog. I torney General could not be found in the

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archives of that office, his opinion sufficiently placed upon the rolls of that parish by the appears by the answer of the auditor to Mr. local assessor. The matter was called to the Pugh, which is couched in the following lan- attention of the Atchafalaya Basin levee guage:

board, and at its meeting held on March 6, "Baton Rouge, La., June 3, 1893. 1918, that board adopted a resolution where"Mr. Edward N. Pugh, Atty., Donaldson- in it is stated that sea marsh lands are not ville, Louisiana-Dear Sir: I referred your lands in the strict sense of the word, and letter of the 22d ulte., to the Attorney Gen- further reciting that, eral for his opinion, and I am today in receipt of his answer, as follows:

"Whereas lands of this character have not “I am fully satisfied that sea marsh and heretofore been assessed in this district, and floating prairie are not liable for acreage this board sees no reason why this acreage tax. This acreage tax is a special contribu- tax should not be canceled and not collected tión imposed upon the land benefited. Sea against such lands, provided it is shown that marsh is not only outside the protection of they are in fact marsh; now therefore be it the levees, but it is not land within the mean- resolved by this board of commissioners of ing of the levee laws; it is property liable to the Atchafalaya Basin levee district, that the regular taxation, according to its present val- board does now declare that if the Wisner Es. ue, but is not alluvial land liable to the spe- tates, Inc., and other property owners show cial acreage tax. It may be regular land to the satisfaction of the assessor of the parsome day but is not now.

ish of Terrebonne and the auditor of public

accounts of the state of Louisiana, and the In deference to this opinion no acreage tax sheriff of Terrebonne parish, that said lands was thereafter assessed upon sea marsh, ex

are in fact marsh lands in their present state, cept perhaps in some isolated instances,

and not in fact susceptible of cultivation and

not subject to said tax, that this board has which the levee boards uniformly ordered to

no objection to the proper officers of the state be canceled for having been erroneously list- of Louisiana ordering said acreage taxes thus ed on the part of the local parish assessors. assessed against said lands canceled, and the It appears that in 1898 another such assess- sheriff ordered not to collect the same." ment was imposed by the parish assessor of the parish of Lafourche upon sea marsh be- It thus appears that, from the time the longing to Wm. H. Aymar, situated within law was enacted in 1890, the special assessthe Atchafalaya Levee District. Aymar ment or local contribution of 212 cents per brought suit in the district court for the acre was never imposed upon sea marsh and parish of Lafourche and enjoined the collec- tloating prairie until the year 1922, when for tion of the acreage tax, and on February 28, the first time it was ordered imposed and 1900, a judgment was rendered by the court, collected by the Atchafalaya Basin levee holding that character of land not subject to board. It further appears according to the the acreage tax. This litigation was brought opinion of the Attorney General that sea to the attention of the Atchafalaya Basin marsh is not land within the meaning of the levee board through its reguar consulting at levee laws as they existed in 1893; that sectorney, Hon. 0. 0. Provosty, who afterwards tion 9 of Act 97 of 1890, creating the Atchabecame Chief Justice of this court. No ap- falaya Basin levee district, was thus conpeal was taken from the judgment of the temporaneously construed by the Attorney District Court of the parish of Lafourche. General as not authorizing the imposition On the contrary, Judge Provosty, in a letter upon sea marsh, of an acreage tax for levee dated December 15, 1899, wrote Mr. A. D. purposes; that this construction of the stat. Barrow, secretary of the Atchafalaya Basin ute was concurred in by the Atchafalaya levee board, in regard to the question in Basin levee board and the law was for about volved in the suit of Aymar, and, among 30 years thereafter only enforced by that other things, said:

Board, as thus construed ; tbat although "My idea is that such suits, I mean suits there have been many sessions of the Legisla. involving the validity of our 242 cents acreage ture since that law was adopted and thus tax had better be contested only when un construed, now over 30 years ago, no change avoidably necessary. Our policy ought to be therein or amendment thereto has ever been to let out all lands which can fairly claim not made; and finally that a construction of that to be within the contemplation of the law.

law similar to that given by the Attorney "Doubtless the present plaintiff is partly General of the state in 1893 was reached right in his contention, the cost of the inclosed copy properly falls upon the Board and I will and announced by the district court for ask you to send Mr. Badeaux," local attorney the parish of Lafourche in 1900 and assentfor the board, “a check for it."

ed to at that time by the legal advisor of

the Atchafalaya Basin levee board. It then It was in the year 1900, that the sea marsh may be fairly and truly concluded that such now owned by plaintiff in this case was sep. construction was contemporaneous, that it ered from the public domain, and it is admit has been concurred in by the executive and ted that it was never assessed for acreage legislative departments of the state, and that tax until the year 1917, when that part of it it has been universally adopted and followed situated in the parish of Terrebonne was for such a length of time as to preclude an

(100 So.) other inquiry as to its correctness by the ju- adopted and acted upon for a long time, dicial department of the state.

should not be changed. There is little if any question as to the The district court was of the opinion that weight to be given to the interpretation of a the acreage tax imposed upon plaintiff's sea law, adopted by the executive and legislative marsh was illegal and unauthorized, and perbranches of the government, especially when petuated the injunction preliminarily grantsuch interpretation is contemporaneous and ed to plaintiff. The finding of that court and has been followed for many years.

its judgment are correct. They should be In the case of State ex rel. Payne, Tax Col- affirmed; and lector v. Exchange Bank of Natchitoches, 147 It is so ordered. La. 26, 84 South. 481, where the decision was written by our present Chief Justice, C. A. O'Niell, the following appears in the syllabus:

(156 La.) "Though an interpretation of a law by other

(Nos. 26419-26422.) departments of the government does not control the judicial department, especially where George G. METZGER v. Dr. Thos. STARK, the correctness of such interpretation is the Tax Collector, et al. LOUISIANA LAND subject of investigation, nevertheless when of & PLANTING CO. V. SAME. WISNER ficers specially charged with the observance ESTATE, Inc., V. SAME. DELTA SECUand enforcement of a particular law have for RITIES CO., Inc., V. SAME. a long time determined its meaning and acted accordingly, their interpretation is entitled to (Supreme Court of Louisiana. April 28, 1921.) great weight.”

Appeal from Twentieth Judicial District
In State ex rel. Guillot v. Central Bank & Court, Parish of Lafourche; H. M. Wallis, Jr.,

Judge.
Trust Co. (In re Central Bank & Trust Co.),
143 La. 1053, 79 South. 857, we said, quoting

Harris Gagne, of Houma, for appellants. from Sutherland on Statutory Construction,

Milling, Godchaux, Saal & Milling, of New Orleans, for appellees.

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par. 309:

"The practical construction given to a doubt By the WHOLE COURT.
ful statute by the public officers of the state,
and acted upon by the people thereof, is to be LECHE, J. The above entitled and num-
considered; it is perhaps decisive in case of bered four cases were consolidated with that
doubt. This is similar in effect to a course of of the Dominion Land Co. v. Dr. Thomas
judicial decisions. The Legislature is pre- Stark, Tax Collector, et al. (No. 26415) 100
sumed to be cognizant of such construction, South. 244, this day decided.
and after long continuance, without any legis They involve the same issue, and for the
lation evincing its dissent, courts will consider

reasons stated in No. 26415, the judgments
themselves warranted in adopting that con therein appealed from are affirmed.
struction,"

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See, also, State v. Comptoir National D'Escompte de Paris, 51 La. Ann. 1281, 26 South.

(156 La.) 91.

No. 24285. It must be observed that the statute involved in this case, is one which provides a PRAEGNER v. KINNEBREW & RATCLIFF. revenue for the benefit of the state. There is no law which demands more attentfon for (Supreme Court of Louisiana. March 24, its enforcement from public officers or in 1924. Rehearing Denied by Division C which the individual citizen is more con

May 5, 1924.) cerned and interested than one which fixes

(Syllabus by Editorial Staff.) the amount of contribution by the citizen and regulates the collection of that contribution 1. Judgment 707—Decree not binding on for the support of our government.

those not parties to suit.

When once such a law has received an official in

A decree is not binding on persons not terpretation, which has been accepted and

parties to suit. acted upon for a number of years both by the 2. Mines and minerals Ow74–Sales; earnest citizen and the official, such interpretation

money must be returned, where purchaser should not be changed except for clear and

declares dissatisfaction with title as author. cogent reasons. The cases herein cited also

ized by contract, involved the construction of revenue laws providing that title should be good and valid and

Under contract for sale of oil and gas lease, and the principles therein established are

approved to entire satisfaction of purchaser, eminently applicable to this case and should where purchaser, with substantial basis therebe adhered to. It is to the interest of the for, declared dissatisfaction with title and restate and of the citizen that an interpreta- fused to take property, earnest money should be tion of the law affecting the public fisc, once returned.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexos

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