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(100 So.) Neither the mother nor the stepfather of how third persons purchasing this property plaintiffs held any position of trust affecting upon the faith of the public records can be the property of said minors at the date of affected by such an agreement, even had the purchase by Mrs. Richmond at the pub- same existed in fact. The testimony in the lie sale. No law has been pointed out pro- record showing that the sale was actually hibiting either of them from purchasing at made on August 24, 1913, and the proces said sale; the question presented, therefore, verbal declaring that said sale was made on as the morality of such purchase is more that date, it is quite clear that the date of casuistical than judicial.

the deed was a mere error. [7] (F): "The members of the family meet [10, 11] We have dealt with these particuing were not appointed by the judge as the lar grounds of attack made upon the public Civil Code of Louisiana requires."

sale, as they are matters, more or less, disArticle 284 of the Civil Code provides closed by the public records, and defendthat

ants are third persons. The district court of "The appointment of the members of the Evangeline parish was unquestionably vested family meeting shall be made by the judge.” with jurisdiction to order the sale of the

property of these minors for the purpose apAct 43 of 1882, section 3, declares that proved by the family meeting. The proceedclerks of district courts

ings are regular, and defendants, as inno"shall have power

to order family cent third persons, who have purchased this meetings

and to homologate tbeir property upon the faith of the deed to Mary proceedings, when not opposed."

L. Richmond, the adjudicatee at a public

sale, held under the decree of a court of [8] We have held that the duties imposed competent jurisdiction, said deed being valid on the clerk by the provision of this act upon its face and duly recorded, cannot be were merely ministerial and mandatory, and affected by any irregularities in the decree did not involve the exercise of judicial func- subsequently ascertained, nor are they bound tions. Act 43 of 1892 is constitutional, and to look beyond the decree recognizing its does not violate either article 92 or article necessity. The truth of the record concern12% of the Constitution of 1879, or article 123 ing matters within the jurisdiction of the of the Constitution of 1898. Article 123 of court cannot be disputed. Irwin v. Flynn, 110 the Constitution cited empowered the Legis- La. $32, 34 South. 794; Nesom’s Heirs v. Weis lature “to vest in clerks of court authority to et al., 34 La. Ann. 1010; Chaffe v. Minden grant such orders and to do such acts as may Lumber Co., 118 La. 753, 43 South. 397; be deemed necessary for the furtherance of Bell v. Lafosse, 126 La. 528, 52 South. 687. the administration of justice.” Hence Act 43 [12] The conveyance records are the only of 1882 was clearly authorized by the or- thing to which one dealing with real estate ganic law, and does not derogate from the needs to look, under the repeated decisions powers of the judge, but simply provides of this court, nor can innocent third persons that certain duties attached to the judicial purchasing upon the faith of the public recoffice may be exercised by the clerks of the ords be bound by any knowledge except such court. There is no conflict, therefore, be as is disclosed by such records.

ice

Baird v. tween article 340 of the Civil Code and Act Atlas Oil Co., 146 La. 1099, 84 South. 366; 43 of 1892 as to the authority of the judge McDuffie v. Walker, 125 La. 167, 51 South. to appoint the members of a family meeting. 100; Waller v. Colvin, 151 La. 772, 773, 92 The same authority, however, may be exer- South. 328. cised by a clerk of a district court, as it is [13] Neither fraud, nor want of consider made his duty by Act 43 of 1882, section 3, ation, nor secret equities between the parto order family meetings, which necessarily ties, who have placed on the public records includes the duty of appointing the members a title valid upon its face, can be urged of such meetings.

Holliday v. Hammond against a bona fide purchaser for value, who State Bank, 118 La. 1000, 43 South. 656; has acted on the faith of such recorded title. Lemoing v. Ducote, 45 La. Ann. 857, 12 Broussard v. Broussard, 45 La. Ann. 1085,

13 South. 699; Fletcher v. Peck, 6 Cranch, [9] (K): Because the deed was dated and 87, 3 L. Ed. 162; Succession of Guillory, 29 filed for record on August 23, 1913, the day La. Ann. 495; Chaffe v. Ludeling, 34 La. before the public sale, it is charged by plain- Ann. 967. tiffs that said property was actually adjudi [14] As the public sale was made under cated according to agreement in advance, the decree of a court of competent jurisdicsince said deed recites the formalities of the tion, and as said sale, authentic in form, depublic sale and the same consideration as clares that the same was made by the tutor the bid at the sale, which was made on Au- for a cash consideration of $8,000, that the gust 24, 1913, as evidenced by the procès purchase price was more than the inventoTerbal of sale of that date. As no such ried value of the property, that Mrs. John agreement appears upon the face of the deed, B. Richmond was the adjudicatee, and the or otherwise, of record, we do not well see last and highest bidder, and that she was

South. 939.

authorized by her husband, innocent third In the case of McCall v. Irion, 41 La. Ann. purchasers cannot be affected by the follow- 1126, 6 South. 815, after considering numering attacks made upon said public sale: (a) our authorities the court announced that, That no price, cash or otherwise, was paid ; (b) that the adjudication and sale was not be that the purchaser must be first called upon

"The underlying principle will be found to made by the tutor but by a third person; to comply with the terms of the sale and pay (g) that the adjudicatee, petitioners' mother, the price, and must be shown to have refused was not present at said sale, and that her so to do. In such a case, bis refusal, or dechusband was without authority to bid in the lination, is treated as a mere passive violation property ; (h) that the tutor was without au- of a contract, the enforcement of which must thority to sign a procès verbal of adjudica- be preceded by a default, as a condition precetion before the price was paid, and that it

dent." was his duty to readvertise and again offer the property according to law, and that the [16] Prior to the institution of this suit no execution of such proces verbal and of such demand had been made upon the defendant *deed was a fraud upon the rights of peti. Mrs. Mary L. Richmond for the payment of tioners; (i) that John B. Richmond bid in said the purchase price, and no suit had been inproperty in the name of petitioners' moth- stituted against her to enforce the payment er, in order to stifle competitive bidding, and or to dissolve the sale for nonpayment. Her in order to make good on warranty of two rights under the adjudication were not diprevious void private sales to S. M. Scott, vested by the mere failure to pay the pur. and that this was his pretense for bidding chase price, and, long prior to the present $8,000, or more than twice the appraisement. suit, had been acquired by the defendants,

[15] All of these attacks are made upon who have purchased various lots from the alleged facts dehors the public records, and adjudicatee, and have gone into the posses. cannot affect third innocent purchasers. It sion of same, and have erected thereon val. is not true, as contended by counsel for uable improvements. As to this property, plaintiffs, that, where the family meeting and plaintiffs are clearly without any right of order of court direct that a minor's prop- recovery. erty be sold for cash and no price is paid, As Mrs. Mary L. Richmond claims no the sale is null and void ab initio, and no rights under the adjudication made to her, title passes to the adjudicatee, in the sense and as she has filed no answer in the case, that there is no adjudication at all.

plaintiffs are entitled to recover the proper

ty acquired by her under said adjudication "The adjudication

has, of itself alone, the effect of transferring to the pur- she admits that no cash, or other considera

and still standing in her name as owner, since chaser all the rights and claims which the party in whose hands it was seized might have had tion, was paid for same as the price of adto the thing adjudged.” C. P. art. 690.

judication made to her at the public sale on "Thi act of sale adds nothing to the force August 24, 1913. Mrs. Richmond does not and effect of the adjudication, but is only in- hesitate to confess that she well knew that tended to afford the proof of it.” C. P. art. the lots sold by her to Dr. S. M. Scott, for a 695.

cash consideration, on April 17, 1912, and on “This adjudication is the completion of the May 2, 1912, were not her property, and that sale; the purchaser becomes the owner of the her vendee acquired no title. Dr. Scott, on thing adjudged, and the contract is, from that discovering that his title was defective, as time, subjected to the same rules which govern the property conveyed to him by Mrs. Richthe ordinary contract of sale.” R. C. C. art. mond belonged to her minor children, de2608.

manded of her either a return of the purchase It is true that article 689 of the Code of price or a valid title, and referred her and Practice declares that, “if the person to

her husband to the firm of Blackman, Overwhom the property has been adjudged shall ton & Dawkins, reputable and able attor. refuse to pay to the sheriff the price of the neys, in an effort to obtain a valid title to

the property for which he had paid by propadjudication,

the 'sheriff shall expose to sale anew the thing seized,” but in derce fails to establish, in our opinion, that

er and legal court proceedings. The evi. the case of Doll v. Kathman, 23 La. Ann. Dr. Scott was connected in any way with 486, this court said:

any agreement between the tutor and Mrs. "The defendant, it is charged, has never paid Richmond and her husband to bid in this any part of the price of the property, and property, and to have a deed executed to it is not shown that he has. It is argued on Mrs. Richmond, without the payment of any the part of the plaintiffs that, never having consideration, in fraud of the rights of the paid for the property, he is not the owner of minors, or that he was a party to any conit. It is not shown, however, that the heirs spiracy not to bid on the property, in order or any person authorized have ever made any demand of payment, or that the defendant has to prevent competitive bidding, to the inbeen put in default, a condition precedent to jury of these minors. While Mrs. Richmond the right of the plaintiffs to recover." attempts in her testimony to charge Dr.

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(100 So.)
Scott with such knowledge as would indi | The judgment appealed from is in our
cate some degree of bad faith, his testimony opinion correct, and it is affirmed.
denying the imputation was accepted as

Rehearing refused by Division A, compos-
trustworthy by the trial judge, and we do ed of O'NIELL, C. J., and ROGERS and
not find any good reason for arriving at a BRUNOT, JJ.
different conclusion, since the interest of
Mrs. Richmond in the result of this case is
apparent from her testimony and from her

(156 La.)
failure to defend this suit against herself.

.No. 24239.
The transfer made to Dr. Scott by Mrs.

LIVERMAN et al. v. HUNGERBEELER.
Richmond, after the public sale, of certain
lots in Oakdale, for a consideration of $1,- (Supreme Court of Louisiana. April 30, 1924.)
000, and his transfer to her of lots which

(Syllabus by Editorial Staff.)
she had illegally sold to him, for a similar
consideration, not only placed the title of Attorney and client om 144—Contract for half

interest as compensation for obtaining pat-
these lots back in the name of Mrs. Rich-

ent to state lands construed. mond, and enabled the plaintiffs to recover

Where attorneys were to have half interest
the same as a part of the separate estate of in certain described property for their services
their father, but operated as giving to Dr. in securing defendant à patent therefor, the
Scott a valid title for the purchase price al- half interest extended to lands not specifically
ready received by Mrs. Richmond, who had described in the contract; defendant having ac-
become the adjudicatee of this property at quiesced in settlement on that basis and accept-
public sale.

ed property and benefit of plaintiffs' labors.
Even if the sum of $1,000 had not been
paid by Dr. Scott to Mrs. Richmond, it can Appeal from Twelfth Judicial District
not be said that no consideration was receiv- Court, Parish of De Soto; John H. Boone,
ed by her for this transfer at the time, and Judge.
that the transaction was in reality an 'ex-

Action by H. T. Liverman and another change, as the consideration had already against George Hungerbeeler. Judgment been received by her under the former ille for plaintiffs, and defendant appeals. Amendgal sale made by her to Dr. Scott, and there ed and affirmed. was no necessity that he should pay her twice for the property in order to obtain a

Lee & Bell and C. B. Huson, all of Mans valid title, when she at the time was the field, for appellant. record owner by virtue of the public sale

W. M. Pollock, of Mansfield, for appellees. made to her.

By Division B, composed of Justices Dr. Scott, being in good faith in this trans- DAWKINS, LAND, and LECHE. action, must necessarily stand in the same shoes, as to his title, as the other defend

DAWKINS, J. Plaintiffs allege that they ants in the case.

are the owners of an undivided one-half of The judgment rendered, after a new trial certain real property situated in the parish granted, merely permitted plaintiffs to re: of De Soto, as well as the timber and imcover, in addition to the property recovered by them and described in the original judg- interest by virtue of a contract made be

provements thereon; that they acquired said ment, lot 17, and a strip 12 feet wide off the tween one of them, W. M. Pollock, and desouth side of lot 18, by the depth of said lot, fendant, dated February 9, 1911, which reads in block 5, east of Eighth street, subject to

as follows:
the rights, if any, acquired by the town of
Oakdale under any act of dedication. None

“Know all men by these presents: That this of the property recovered by plaintiffs had contract and agreement, made and entered into

by and between George Hungerbeeler, husband been conveyed by Mrs. Richmond after the of Anna Lafitte, a resident of De Soto parish, adjudication; the title remaining in her Louisiana, on the one hand and hereinafter name. The adjudication and sale to Mrs. referred to as the party of the first part, and Richmond was annulled and declared void W. M. Pollock, a resident of De Soto parish, and of no effect as to the property recovered Louisiana, on the other hand and hereinafter

referred to as the party of the second part, by plaintiffs, and the demands of plaintiffs

witnesseth: as to all other defendants, except as against "That in and for the professional services ren. Mrs. Richmond, her husband, and the town of dered and to be rendered, and the further conOakdale, were rejected. Mrs. Richmond and sideration hereinafter mentioned and set forth, her busband were condemned to pay the have granted, bargained and sold, and by these costs, and the rights of plaintiffs to proceed presents do grant, bargain, sell, convey and deagainst them and against their tutor, Nar- liver unto and in favor of the party of the

second part, an undivided one-half (12) incisse Guillory, as reserved in the petition, terest in and to all my rights, title, claim and were recognized

interest in and to the south half (S. 12) of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes

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southeast quarter (S. E. 14) of section twenty- | property; that they have spent more than three (23), and north half (N. 12) of northeast $800 in paying the purchase price to the quarter (N. E. 14) and fractional northwest state, and otherwise in perfecting said title. quarter (N. W. 14) of section twenty-six (26), Further, that, because of said conflicts, petiand north half (N. 16) of northeast quarter tioners were only able to obtain, and did ob(N. E. 14) section twenty-seven (27), township thirteen (13) north of range twelve (12) tain, patent 'to lots 4 and 10 of section 26, west of the Louisiana meridian, in De Soto and lot 8 of section 27, in township 13 north, parish, Louisiana, containing in the aggregate range 11 west, Louisiana meridian, containthree hundred and twenty (320) acres, more or ing 167.18 acres, with the improvements less.

thereon, and, notwithstanding defendant “Po have and to hold an undivided one-half willingly agreed to said compromise and (44) interest in and to the above-described settlement, he has failed and refused to relands to the said purchaser, the said party of cord the patent to said lands; that defendthe second part, his heirs and assigns forever.

"It is understood that the aforesaid described ant has also failed and refused to carry out lands are dried lake lands, the title to which is his contract and agreement with petitioners now vested in the state of Louisiana, and that by conveying to them an undivided one-half the said party of the first part has made en interest therein. try or declaration No. 161 for the purchase, as Petitioners further allege that defendant provided by law, of said lands, and up to this bas, without right, cut and removed from time there has been no official survey of said said land timber to the value of $1,000, onedescribed property, nor has the said party of the first part submitted his full and final proof

half of the proceeds of which they claim, of actual residence, settlement and cultivation and that otherwise they are entitled to oneas provided by law to the register of the state half of the revenues of said property; beginland office at Baton Rouge, Louisiana, and has ning with the year 1914, which amount to therefore induced the said party of the second more than $500 per year; that their said part to assist in securing patent to the afore-contract should be specifically enforced, said described property, which he is entitled their interest in said property recognized, to in equity and law to a patent to said land. “The purpose and intent of this instrument is

and a partition by licitation decreed. to sell and convey to the said party of the

Defendant's answer was, in effect, a genbecond part an undivided one-half (42) interest eral denial, but in the alternative, if plainof all the interests, claim, right, and title of tiffs had any interest in said property, it the said party of the first part now or may consisted only of a one-half interest in the have or will have after securing of patent to minerals in and under said lands, because the said party of the first part, and the said the contract was subsequently modified so party of the second part and will prosecute and

as to restrict it to those rights. He prayed diligently endeavor to recover and secure a patent or patents from the state of Louisiana that plaintiffs' demands be rejected, except by such methods or in such manner, amicably as to the interest in the minerals. or by litigation, as he thinks 'best and deems There was judgment for plaintiffs, recogadvisable, at his own cost and expense, and in nizing them as owners of a one-half interest the event that patent is given to the said party in the land with improvements as prayed of the first part, then and in that event this in- for, ordering defendant to make title accordstrument is to become effective as a deed to an ingly, or in default thereof, after a period undivided one-half (12) interest in and to the of 30 days, the decree to stand in lieu of forproperty hereinabove described and set forth."

mal deed. “It is further understood and agreed by and between both parties hereto that in the event

Defendant appealed, and plaintiffs have said property can be used or handled in such answered, praying that the judgment be way, manner or shape as to produce any rev- amended so as to give the relief originally enue, before patent is issued to said property, demanded. then and in that event the said party of the

There is no serious dispute as to the facts. second part is to receive and derive an undivided Defendant employed plaintiffs professionally one-half (12) interest in and to all said moneys, as attorneys at law, as per the contract hererents, etc.

"Witness our hands, in the presence of the inabove quoted, to procure patent to certain two witnesses good and competent witnesses, described lands, amounting to 320 acres more on this the 9th day of January, A. D. 1914.”

or less; but it developed that the former It is further alleged that the interest of could not be permitted legally to receive title the other plaintiff arises from the fact that from the state to more than 160 acres. De he is the law partner of Pollock and the fendant's claim conflicted with those of othcontract was one for professional services. er persons, and finally, after protracted neFurther that, acting thereunder, petitioners gotiation, the rights of the respective parties exerted their best efforts to perfect the titles were agreed upon, and defendant, as a reas agreed, but that the claims of defendant sult of the efforts of plaintiffs, including cerconflicted with those of other persons, and tain legislation which they were instrumenthat petitioners obtained a relinquishment tal in having enacted, now has patent to the from said other claimants which enable them property involved. It so happened that a to cure and obtain title to a portion of said portion of the land which he received (lot :)

(100 So.) consisting of lots or parts of irregular sec- certainty the amount thereof, and the same tions, extended down into a quarter section will be dismissed as in case of nonsuit. which was not specifically described in the For the reasons assigned, the judgment contract of employment, and this is the real appealed from is amended by dismissing, as bone of contention in the case-i. e., as to in case of nonsuit, all claims for a money whether, under these circumstances plain- judgment on the part of plaintiff; otherwise tiffs should be held to have an interest in it is affirmed with costs. that part.

We think that, although there were de. scribed in the contract certain specific sub

(156 La.) dirisions, it clearly appears that the purpose

No. 24494. and object of the agreement was that plaintiffs should endeavor to secure for defend

CLAVERIE v. LORENZ et al. ant title to such of the property as it might (Supreme Court of Louisiana. April 30, 1924.) be possible to do, and that they should have a half interest in whatever was recovered.

(Syllabus by Editorial Staff.) It was clearly stated in the contract that courts 231(52)-Case transferred, whero there had been no survey, and further that,

plaintiff's demand cannot reach jurisdictional

amount, "The purpose and intent of this instrument is

Where plaintiff's demand for damages canto sell and convey to the said party of the second part un undivided one-half (43) interest of not reasonably amount to lowest limit of Suall the interests, claims, right and title of the preme Court's jurisdiction, although every fact gaid party of the first part now has or may transferred to Court of Appeal.

in petition be accepted as true, case will be hare or will have after securing of patent to the said party of the first part, and the said party of the second part shall and will prosecute and

Appeal from Civil District Court, Parish diligently endeavor to recover and secure a pat- of Opleans; Wynne G. Rogers, Judge. ent or patents from the state of Louisiana by

Action by John C. Claverie against Wm. A. such methods or in such manner, amicably or Lorenz and others. Judgment for defendby litigation, as he thinks best and deems advisable

, at his own cost and expense, and in ants, and plaintiff appeals. Transferred to the event that patent is given to the said party

Court of Appeal. of the first part, then and in that event this in James Barkley Rosser, Jr., of New Orstrument is to become effective as a deed to an leans, for appellant. undivided one-half (12) interest in and to the

Woodville & Woodville, of New Orleans, property hereinabove described and set forth.”

for appellees. What was obtained was undoubtedly due By Division B, composed of DAWKINS, to plaintiffs' efforts, and defendant is hardly LAND, and LECHE, JJ. in a position to dispute their right to recorer an interest in the lands, even if not spe

LECIE, J. Plaintiff seeks in this suit to cifically described in the contract, after fully recover the custody and possession of certain acquiescing in the settlement, accepting the movables which he values at $375.10, and he property and the benefits of their labors. also prays for the recovery of $5,000 damThe proceeds of a mineral lease upon the ages. Plaintiff's demand was refused, and property were divided equally between plain- his suit dismissed by the trial court, and he tiffs and defendant, and the latter at that has appealed. time raised no question as to plaintiffs' right

Appellee has made no appearance in this thereto. In other words, the parties have court. thus construed and interpreted the agree

A mere inspection of the record shows ment as being one for the recovery of title that plaintiff's demand for damages is grossto such of the property as might be had, and ly exaggerated. Accepting as true every this is the best index to their intention. R. fact which he alleges in his petition, a most C. 1956, 1957; Abadie v. Lee Lumber Co., 128 liberal award could not reasonably amount. La, 1014, 55 South. 658; Bender v. Chew, to the lowest limit of our jurisdiction. 129 La. 849, 56 South. 1023; Metcalfe v. Wherefore it is ordered that plaintiff and Green, 140 La. 950, 74 South. 261..

appellant pay the costs of the present appeal We are of the opinion, therefore, that the to this court, and that this appeal be transconclusion of the lower court upon the ques- ferred to the Court of Appeal for the parish tion of title was correct. However, the evi- of Orleans upon plaintiff's filing the record dence to support the claim for rents and rev- in said court within 15 days from the finalenues is not sufficient to enable us to fix with ity of this decree.

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

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