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May 26, 1919, from which date the plaintiffs | square bounded by Dryades, South Rampart, have been in possession of said property, First and Second streets, described by the renting it out at $55 per month and paying No. 4, on a certain plan of E. Eisenstream, insurance and taxes. The present suit was surveyor, dated May 6, 1868, a copy of which filed June 8, 1920, and August Rudolph Lang- is annexed to an act passed before W. J. ermann, defendant herein, filed his answer Castel, notary public, on August 31, 1868, November 16, 1920, claiming to be the owner which lot measures thirty (30) feet front on of a two-thirds interest in said property, Dryades street, by one-hundred and fifteen while the act of sale upon which plaintiffs (115) feet, six (6) inches, between equal and rely as the basis of prescription is of date parallel lines,” being the same property February 21, 1910.
which the said society acquired from RuWhile it is true that the dation en paie-dolph Langermann on May 26, 1919, by act ment made by Rudolph Langermann to plain- of sale passed before W. Morgan Gurley, notiffs on May 26, 1919, states that he married tary public, registered in Conveyance Book the second time in January, 1915, and that No. 308, p. 59. The defendant August Ruhis second wife was still alive and residing dolph Langermann to pay all costs. with him; yet under article 3482 of the Civil Code, even if the possession of plaintiffs
On Rehearing. from May 26, 1919, be held as in bad faith,
By the WHOLE COURT. yet plaintiffs' possession having commenced in good faith is sufficient to sustain the pre
LAND, J. Article 1753 of the Revised Civscription of 10 years, as plaintiffs are enti
il Code provides tled to tack on to their possession that of their author, Rudolph Langermann, a posses
"If a person, who marries a second time, has sor in good faith. Mala fides superveniens children of his or her preceding marriage, he non nocet. Barrow v. Wilson, 38 La. Ann. property given or bequeathed to bim or her by
or she cannot, in, any manner dispose of the 209; Leduf v. Bailly, 3 La. Ann. 8; McGow-l the deceased spouse, or which came to him or an v. Laughlan, 12 La. Ann. 242; R. C. C. her from a brother or sister of any of the art. 3493.
children which remain. It is true that the rights of August Ru
“This property becomes, by the second mardolph Langermann, plaintiff in petitory ac- riage, the property of the children of the pretion, and defendant herein, came into being ceding marriage, and the spouse, who marries in January 1915, when his father married again, only has the usufruct of it." the second time. It is also true that the pre
That this article clearly refers to the disscriptive period was running during this position of property bequeathed to a survivtime; yet he remained quiet and inactive for ing spouse, and which is in his or her pos
more than five years after the accrual of his session at the date of the second marriage, | alleged rights. It was only when he was is made clear by the clause in the second
forced to defend this suit brought by plain: paragraph of the article, "and the spouse tiffs that he asserted for the first time, and who marries again, only has the usufruct of too late, any adverse claim to the property it." It would be legally impossible for a surin controversy.
viving spouse, after the second marriage, to The plea of prescription of 10 years is have the usufruct of property which he had therefore maintained.
disposed of before the second marriage, and For the reasons assigned, the judgment which had been bequeathed to him by the appealed from is annulled, avoided, and re- wife of the preceding marriage.: versed, and it is now ordered, adjudged, and The clause in the second paragraph of said decreed that the reconventional demand of article, "and the spouse who marries again, defendant August Rudolph Langermann, for only has the usufruct of it,” also plainly ina two-thirds interest in the property in con- dicates that, prior to the second marriage, troversy and for rents and revenues from the surviving spouse had acquired by the besame, be and the same is hereby rejected quest made to him by the wife of the precedand dismissed. It is further ordered, ad- ing marriage both the ownership and the judged, and decreed that there be judgment usufruct of the property so bequeathed, and in favor of the plaintiffs liquidators of the that the ownership became forfeited by the Prudential Savings & Homestead Society second marriage, leaving to the surviving maintaining the plea of prescription of 10 spouse “only the usufruct of it." years acquirendi causa and decreeing the We therefore have unders said article, prisaid liquidators to be the true and lawful or to the second marriage, both the ownerowners of the property described in their pe-ship and the usufruct vested in the survivtition as "a certain lot of ground, together ing spouse of the property bequeathed to with the buildings and improvements there. him, and his immediate dominion over it. on, and all rights, ways, privileges, servi- Where, then, is the legal impediment to his tudes and advantages thereunto belonging, disposing of the property, before the second or in any wise appertaining, situate in the marriage, and to his giving to his vendee & Fourth district in the city of New Orleans, in good and valid title?
(100 So.) The property acquired under this article, wise looks with disfavor upon forfeitures. by a child of the preceding marriage does As the penalty under article 1753 of the Renot come to him from the testamentary dis- vised Civil Code is imposed solely upon the position of his mother in favor of the sur spouse contracting the second marriage, it is viving father. Mrs. Langermann had the clear clear that it was never intended that innolegal right at her death to bequeath to her cent third persons, purchasing the property surviving husband the disposable portion of from the surviving spouse prior to the sectwo-thirds, as her will reserved to her son, ond marriage, should be affected by any forthe only heir, his légitime of one-third. feiture of the ownership of the property ac
The title derived by Langermann, Sr., un- quired by them. The very nature of a pender the will of his deceased wife to two- alty is that it should be imposed upon the thirds of this property, was no less perfect offender alone and that it should not operate and unconditional at the time, than that de- retroactively. rived by the son under the same will.
Ex post facto legislation by the states is Had Langermann, Sr., died after disposing prohibited under the federal Constitution, of this property to the homestead associa- and the raison d'étre of article 1753 of the tion, and before his second marriage, it is Code clearly shows that it is not retroactiv obvious that a valid and legal title would in its operation, but was intended to punish have rested in the association and that the in the future the spouse contracting a secson would have no claim whatever as to this ond marriage by forfeiting the ownership of property from the succession of his father.
of the property bequeathed and in his or her  It is not by virtue of any right of in- possession at the date of this second marheritance from the mother that a son of the riage, which under the law of Spain was preceding marriage can claim the ownership considered an offense against the memory of of the property bequeathed to his father, but the deceased spouse. it is solely because of the second marriage, Article 1753 of the Code was not intended, solely because of the operation of law, that therefore, primarily to protect, as against he becomes the owner of such property. the stepmother or the stepfather, the rights
The "second marriage” referred to in ar- of the children of the first marriage as to ticle 1753 of the Code is neither a suspensive their patrimony. Whatever interest accrues condition nor a resolutory condition, because to them in this respect flows only incidentalthere is no antecedent right, or title, or con- ly from the penalty of forfeiture incurred tract to which such condition can be attach- by the second marriage. They have no anteed. This interpretation is made irrefutable cedent title by virtue of inheritence from when it is remembered that article 1753 of their deceased mother or father, as the surthe Revised Civil Code is an enactment in viving spouse, before marrying a second the nature of a penal statute, and that the time, is vested with such title. second marriage operates as a forfeiture of In the Succession of Hale, 26 La. Ann. the ownership of the property by the hus- 202, the court said: band on his marrying again.
Article 1753 of the Revised Civil Code “wa's In the case of Verret v. Bourgeois, 15 La. incorporated into our system of laws from the 111, 112, this court said :
Roman law and the Spanish Codes. It is not "This provision [article 1753, old Code, ar- found in the Napoléon Code, but is derived ticle 227] is evidently taken from the 15th law from the Justinian Code. De secundis nuptiis. of Toro, which provides that 'In all cases in Title 1, Novellæ Constitutiones, 22, chapter which women shall contract a second marriage, 23 (which is translated into English as folthey shall be bound to reserve to the children lows]: 'But if the law discover that children of the first marriage the property they shall and offspring are in this manner dishonored [by hold from the first husband, or shall nave in- a second marriage), then it deprives her, the herited from any of the children of the first mother, as to the matter of ownership of all marriage. The same obligation to reserve shall munificent donations coming from the husband exist for men who marry a second or third to her, leaving to her only the usufruct. time, so that whatever the law ordains as to
And generally it is said that every women marrying a second time, applies to men
form of ownership leaves her in those things who marry a second or third time.
which came to her by a former husband.'" **This obligation to reserve, which was impos
The wife marrying a second time, and beed as a penalty on the surviving spouse who contracted a second marriage, was restricted ing thereby deprived of the ownership, could by several exceptions, which we find laid down not be left “only the usufruct," unless she in the writers; one of them was, that this ob- was in possession of the property as owner ligation to reserve did not extend to property at the date of the second marriage. acquired by the children of the first marriage It is therefore clear that not only under otherwise than by inheritance from the deceas- the original law as it existed in the Novellæ ed father or mother, whose memory was sup: Constitutiones of Justinian, but also under posed to have been offended against by such the 15th law of Toro of the Spanish Code, the second marriage," etc.
forfeiture of ownership was a penalty for the (2,3) It is clementary that penal statutes second marriage. This construction must must be strictly construed.
The law like-necessarily be attached to article 1753 of our
Code, which is based upon these ancient, forfeiture, becomes the property of the chillaws. That the penalty of forfeiture of own- dren of the preceding marriage; the spouse ership should be inflicted upon innocent pur- who marries again retaining the usufruct chasers of property prior to the second mar- only. The article does not deal in any way riage, prior to the commission of the offense with alienations of this property prior to entailing such forfeiture upon the wife or the second marriage, nor does it pretend to husband, marrying a second time, is not only regulate the effect of incumbrances which unnatural and unjust, but is clearly contra- may have been placed thereon before that ry to the spirit of the Justinian Code, the event. Article 1753 is concerned mainly with Spanish Code, and our own Code, in neither the question of the ownership of this propof which do we find any language referring erty after the second marriage, and with the to or affecting the rights of third persons, rights of the spouse marrying again. Its siprior to the second marriage.
lence as to third persons indicates clearly In the case of Zeigler v. His Creditors, 49 that such property is considered in law to La. Ann. 144, 21 South, 666, this court was be vested in the surviving spouse in full and led into the error of declaring that article perfect ownership, prior to the second mar1753 of the Civil Code was analogous to the riage. That third persons are to be affected "right of return" rovided for in article at all after the second marriage results im1534 (1521) of the present Code. This article pliedly and only from the divestiture of the declares that
title of the spouse contracting the second "The donor may stipulate the right of return
marriage, of the objects given, either in case of his sur
The result of the decision in the Zeigler viving the donee alone, or in case of his sur-Case was to place valuable property out of viving the donee and his descendants. That commerce indefinitely, and to affect the staright can be stipulated for the advantage of bility of titles to real estate, acquired by the donor alone."
bona fide purchasers prior to the second The right of return under article 1534 marriage. That decision was made possible (1521) is clearly a matter of convention or only by ingrafting by analogy articles 1534
(1521) and 1535 (1522) of the Civil Code upagreement between the parties. It is expressly stipulated in the act of donation, in origin and purpose, while the genesis of
on article 1753, articles entirely dissimilar which, when recorded, is notice to third per article 1753 and the reason of its enactment sons of the existence of the right of return
was lost to view in the discussion in that to the donor of the property donated by him. The public is put upon full notice of the decision in the Zeigler Case that the court's
In fact, it does not appear from the right of return in such cases by the records. attention was directed to the penal character
Consequently, it is provided in article 1535 (1522) that
of this article of the Code and to the fact
that the forfeiture of ownership in the sur“The effect of the right of return is, that it viving spouse was not, therefore, possible uncancels all alienations of the property given til the second marriage. The question of rethat may have been made by the donee or his descendants, and causes the property to return troactive penalty as affecting the rights of to the donor, free and clear of all incumbranc- innocent third persons purchasing the propes and mortgages," etc.
erty in good faith and before the second
marriage does not seem to have been called This article expressly declares that third to the attention of the court at all. This persons purchasing the property donated question may therefore be considered as res with the stipulated right of return to the nova, notwithstanding the decision in the donor shall be affected, if they buy such prop- Zeigler Case. erty or accept mortgages upon the same. We will consider the question whether the
Articles 1534 (1521) and 1535 (1522) of the dation en paiement made by Langermann, Code are found under the head of “Dona- Sr., in 1919, to the building association, after tions Inter Vivos."
his second marriage, was a new title from Article 1753 of the Code does not provide him and was affected by his said marriage, for any return of property to the donor by or whether it was a mere retrocession of the agreement or otherwise. It deals exclusive property to said association, his vendor. ly with the status of property, after the
“A resolutory condition is implied in all comdeath of the hushand or wife of the preced-mutative contracts, to take effect, in case either ing marriage, when such property has been of the parties do not comply with his engagegiven or bequeathed by the deceased spouse ments," etc. R. C. C. art. 2046. to the survivor, who has contracted a second "If the buyer does not pay the price, the marriage. This article does not restore the seller may sue for the dissolution of the sale.”
R. C. C. art. 2561, property so given or bequeathed to the es
"The dissolving condition does not suspend tate of the donor or testatrix, but forfeits the execution of the obligation; it only obliges the ownership of the property in the spouse the creditor to restore what he has received, contracting the second marriage, the donee in case the event provided in the condition or legatee, and the property, through such takes place. R. C. C. art. 2045.
(100 So.) "The condition being complied with, bas a, vendee, but the property reverts back to the retrospective effect to the day that the en- vendor, in consequence of the vendee's failgagement was contracted.”. R. C. C. art. 2041. ure to pay the price, as if no sale had taken
"Obligations are extinguished: the effect of the dissolving condition, etc. Ř. place. Chretien v. Richardson, 6 La. Ann. C. C. art. 2130.
2; Fulton v. Fulton, 7 Rob, 75; Power, Tu
trix, v. Ocean Ins. Co., 19 La. 28, 36 Am. Under these articles of the Civil Code, this Dec. 665. court has held that the fact that the proper
 The second marriage of Langermann, ty had passed from the vendee into third Sr., in the year 1915, therefore, did not have hands in no manner abridges the right of the legal effect of divesting the building asthe vendor to sue for the rescission of the sociation of the title to this property, alsale for the nonpayment of the price. Ste- though such title stood in the name of Langvenson v. Brown, 32 La. Ann. 162; Ragsdale ermann, Sr., at that date, and until the year et al. v. Ragsdale et al., 105 La. 405, 29 1919, when, finding himself unable to pay for South. 906.
the property, he made a dation en paiement Therefore, if Langermann, Sr., had sold to said association. this property to his son, after the second
The title of Langermann, Sr., to this propmarriage in 1919, instead of making a da erty was defeasible. He had not paid his tion en paiement to the building association, vendor, the building association, the pursaid association could have rescinded the chase price. The dation en paiement made sale for nonpayment of the purchase price, by him can be viewed, under these circumwhile the property was in the hands of the stances, in no other light than as a voluntason, a third person.
ry retrocession, in lieu of a compulsory enIn the Ragsdale Case, above cited, we said: forcement by suit of the resolutory condition
implied in the sale made to him by the build"The underlying principle is that until the
ing association. Fendee pays the purchase price he holds by a defeasible title only, and all who deal with
The sale of this property by Langermann him are equally affected. Further, that the to said association took place in the year rescission of a contract of sale for a cause go- 1910, and the resale by the association to ing back to the origin of the agreement (such him was made during the same year. as for want of payment of the price] is not Under our view of the law, as announced considered as an alienation,
but in our analysis of the Zeigler Case, the sale rather as a return to the former ownership, of Langermann, Sr., to the association, prior which has not ceased to exist, or was only suspended. Insurance Co. v. Packwood, 9. La. At that date, the son of Langermann, Sr.,
to his second marriage, was legal and valid. Ann. 87; 4 Toullier, Contracts et Obligations Conventionnelles, Nos. 539, 548, 550; Mortee defendant in this suit, had no right, title, or v. Roach's Syndic, 8 La. 83; McKenzie V. Ba- interest in or to this property, inchoate or con, 41 La. Ann. 9, 5 South. 640."
otherwise, as the second marriage had not
taken place. Langermann, Sr., at the date Article 2045 of the Civil Code declares of the sale by him to the building associathat the dissolving condition, when accom- tion, therefore, held the property in controplished, operates the revocation of the obli- | versy in perfect ownership. As the building gation, and places matters in the same state association in this case holds by virtue of its as though the obligation had never existed. legal and valid title from Langermann acWhen the condition happens, therefore, quired in 1910, and not under any title from the property returns to the vendor free of him after his second marriage, plaintiffs are all alienations and incumbrances imposed by entitled to be decreed the true and lawful the vendee.
Stevenson v. Brown, 32 La. owners of this property. Ann. 461; George v. Lewis, 11 La. Ann. 656; It therefore ecomes unnecessary for us to Johnson v. Bloodsworth, 12 La. Ann. 699; pass upon the plea of prescription of 10 Thompson v. Kilcrease, 14 La, Ann. 340; | years acquirendi causa tendered by plainGeorge v. Knox, 23 La. Ann. 355; Temple- tiffs. man v. Pegues, 24 La. Ann, 537.
For the reasons herein assigned, our forThe vendor may enforce the resolutory mer decree is reinstated and made the judg. condition by suit to rescind the sale, or the ment of the court. purchaser may do voluntarily what he can be compelled to do by suit; i. e., he may O’NIELL, C. J., and ST. PAUL, J., concur make a voluntary retrocession of the prop- in the decree. erty to the vendor. In either case, the ven ROGERS, J., concurs in decree for reasons dor does not acquire a new title from the set forth in opinion on rehearing.
Peytavin plantation, situated in the parish No. 24383.
of Ascension. GRACE REALTY CO. V, PEYTAVIN PLANT.
Plaintiffs allege that they entered into a ING CO., ino., et al.
verbal contract with the Peytavin Planting
Company, Inc., and Jacob Lebermuth on or (Supreme Court of Louisiana. March 31, 1924. about November 5, 1919, for the sale of this Rehearing Denied by Division C.
plantation for the sum of $106,800 with the May 5, 1924.)
movables, or for the sum of $82,400 without (Syllabus by Editorial Staff.)
the movables, and that plaintiffs were to re1. Brokers 57(2)-Broker entitled to pro- the sum of $2,400.
ceive as their commission for their services portion of agreed commission where principal himself has consummated transaction for
Plaintiffs' demand against Jacob Leberless than price fixed.
muth was dismissed by the lower court, as Where broker employed to sell property at the evidence disclosed that he had no intergiven price for agreed commission has opened est in this plantation, and was merely rep negotiations with purchaser, and principal, resenting defendant company as agent in the without termination of agency or negotiations sale of the place. The price of the plantaso commenced, concludes sale for less sum than tion at $106,800 is also eliminated from the price fixed, broker is entitled to ratable pro- case, as the property was sold by defendant portion of agreed commission.
company for $80,000; all corn, hay and mo2. Brokers 56(3)-Purchaser could not ter- / lasses on the place being included in the sale. minate relations and protect vendor.
The defendant company offered this propAs prospective purchaser with whom bro-erty at $80,000 net, reserving the right to ker was negotiating had nothing to do with sell, and plaintiffs were to receive a commiscommissions to be paid by vendor, it was not sion of $2,400 in addition to this price, or in his power to terminate his relations with 3 per cent. on the net price. The agent's the broker just before consummation of the contract was not for any fixed or definite sale in order to protect the vendor from lia- period. The sale was made to 0. Robert & bility.
Bros., through the efforts of Ed. Grace and 3. Brokers 46, 55(1), 56(3) Principal's | Albert L. Grace, members of plaintiff com
right to sell without agent's intervention, pany. It is true that Jacob Lebermuth, stated.
agent of defendant company, had endeavPrincipal may reserve right to sell prop- ored prior to this sale, which was effected erty at fixed net price, and may deny broker November 25, 1919, to interest Omer Robert exclusive right of sale, and in such case may of said firm to purchase this place, but withsell property directly or through another agent,
out result. but cannot sell to prospective purchaser pro
These negotiations were comduced by agent and deprive such agent of com- menced about October 10, 1919. The negomission, either by discharging him or by silent- tiations initiated by plaintiffs covered the ly ignoring his rights.
period from November 5 to November 20,
1919. Through correspondence, visits, and Appeal from Twenty-Seventh Judicial Dis- otherwise, Omer Robert. was induced by Altrict Court, Parish of Ascension; Philip H. bert Grace to make an offer of $70,000 for Gilbert, Judge.
the property, which was declined, with the Action by the Grace Realty Company statement that the property must bring $80,
000 net. Albert Grace, after making this against the Peytavin Planting Company, Inc., and another. Judgment for plaintitr, offer on the afternoon of November 20, 1919, and defendant named appeals. Affirmed.
left the residence of Lebermuth, and had
proceeded but a short distance in his autoWalter Lemann, of Donaldsonville, for ap- mobile, when he met Omer Robert and his pellant.
brother in their car. Grace reported the reJohn Marks and A. N. Simmons, both of sult of his interview to them, and offered to Napoleonville, for appellee.
return with them to the residence of the By Division B, composed of Justices DAW agent, but they declined, and replied that KINS, LAND, and LECHE. Justice LECHE they would go alone and see if they could being absent, on account of illness, Mr. Jus- do better. The result was that the sale was tice ROGERS, of Division A, heard the ar- closed for $80,000, with certain movable gument and took part in the decision in the property included, and, without any notitifollowing case.
cation whatever by defendant company to
Albert Grace, the agent, or without any opLAND, J. The Grace Realty Company, a portunity whatever given to him to protect commercial and real estate partnership, com- his commission by seeing his prospective posed of Charles E. Grace and Albert Lu purchasers before the sale. Albert Grace Grace, have brought this suit to recover of had not been dismissed as agent by defenddefendants in solido the sum of $2,400, with ant company, nor by his prospective purlegal interest from November 25, 1919, un- chaser, before this sale; although Omer Rob til paid, as a commission for the sale of the | ert has attempted to construe his statement
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