LECHE, J. Plaintiffs sue as heirs of their mother, to recover from defendant the undivided half of certain property acquired by their father, during his marriage with their said mother and sold by him, without authority, after her death. The district court refused their demand as to one of the properties in suit, viz.: The southwest quarter of section 8, in township 12 N., R. 1 west, and this appeal, taken by them, is restricted to their claim to that property. Defendant, at the time of the institution of this suit, and at the time it filed its original answer, owned the south half and the merchantable timber on the north half of the said southwest quarter section, by virtue of titles emanating from the plaintiff's father. But a few days prior to the trial of the case, on March 11, 1915, defendant again bought the same property from the author in title of plaintiffs, filed a supplemental answer, and pleaded this newly acquired title. Plaintiffs then filed a plea of estoppel under which they contend that defendant could not assail the validity of the title which it had originally acquired through mesne conveyances from their father. then perjured himself in making final proof. The legal presumption of omnia rite acta, etc., on the contrary, is that Rolen must have completed his final proof before conveying the land to Sanders. On the trial of the case, the judge, notwithstanding timely objection on the part of plaintiffs, further permitted defendant to offer testimony to show that Rolen had not resided continuously upon the land entered by him as his homestead, and that by a verbal agreement of exchange with one W. P. Allen, he had abandoned the same for more than six months prior to making his final proof, in violation of sections 2291 and 2297, United States Revised Statutes (U. S. Comp. St. 1916, §§ 4532, 4552). The judge's ruling was, in our opinion, contrary to the well-settled rule invoked by plaintiffs that a defendant in a petitory action may not attack or assail the title of one who is the common author of both parties, as title in some one else is as fatal to defendant as it is to plaintiffs. Defendant could have no possible interest in avoiding Rolen's homestead rights. That is a matter which only concerned the United States government. If Rolen's title was The record shows that one Charley Rolen based upon perjury, its infirmity or invalidentered the quarter section of land in dispute ity was not cured by time, but continued up as his homestead, that he made final proof to the moment that defendant obtained from of his entry on December 12, 1899, and that him the conveyance of March 11, 1915, which a final certificate was issued to him on Jan- it pleaded in its amended or supplemental anuary 8, 1900. The property was sold by Char- swer. The title thus obtained by it from ley Rolen to R. A. Sanders on December 12, Rolen on March 11, 1915, was not a new title, 1899, the same day that final proof was but the same title which it had already demade. Sanders had married plaintiff's' moth-rived through plaintiffs' father. Plaintiff's' er in the year 1881, and she died September objection to the admissibility of that evi11, 1900. Sanders sold all the timber on the quarter section on February 25, 1902, and sold the naked land composing the north half of the quarter section on April 10, 1902. By deed acknowledged December 4, 1911, he then sold the remainder of the land forming the south half of the quarter section. Defendant, in its supplemental answer, charges that Rolen sold to Sanders prior to making his final proof, and that said sale was void, as being a sale of land still belonging to the United States, and to which he had not yet acquired title. dence should have been sustained (Gallagher v. Conner, 138 La. 641, 70 South. 539), and for the same reason defendant should have been held estopped from pleading the matters alleged in its supplemental answer attacking the title of Rolen, common author of plaintiffs and of himself. For these reasons, the judgment appealed from is amended by recognizing plaintiffs as owners of the undivided half of the timber on the north half of southwest quarter of section 8, township 12 north, range 1 west, Louisiana meridian, and as owners of the undivided half of the south half of the south Unless defendant pleaded a new title, acquired from some other person, it had no in-west quarter of section 8, township 12 north, terest in attacking the transfer by Rolen to Sanders, and could not impugn that title. It made no attempt to offer evidence as to the time of day at which the final proof was completed by Rolen and the time of day at which the sale to Sanders was executed. These two transactions took place on the same day, December 12, 1899. The court will not presume that Rolen first sold the property and range 1 west, Louisiana meridian, together with the timber thereon, and by maintaining and perpetuating the injunction herein issued in so far as it applies to the southwest quarter of said section 8, and by further condemning defendant to pay all costs; and, as thus amended, it is ordered that the judgment appealed from be affirmed, at the costs of defendant and appellee. (143 La. 185) No. 21259. HYDE et ux. v. TEXAS & P. RY. CO. (Supreme Court of Louisiana. April 1, 1918.) (Syllabus by Editorial Staff.) 1. RAILROADS 398(3)-INJURY ON TRACKNEGLIGENCE. In an action for damages for the death of plaintiffs' son, who was run over by defendant's train while he was asleep beside the track, evidence held not to show that the engineer was negligent in failing to see deceased in time to avoid the accident. 2. RAILROADS 367-INJURY ON TRACK FAILURE TO WHISTLE. In such case, even though the engineer's failure to blow the whistle when he saw deceased asleep beside the track was an error of judgment, he would not be considered at fault in such an emergency. Appeal from Twenty-First Judicial District Court, Parish of Iberville; Calvin K. Schwing, Judge. Action by William H. Hyde and wife against the Texas & Pacific Railway Company. Judgment for defendant, and plaintiffs appeal. Affirmed. Hundley & Hawthorn, of Alexandria, for appellants. Albin Provosty, of New Roads, and Howe, Fenner, Spencer & Cocke, of New Orleans, for appellee. O'NIELL, J. [1] The plaintiffs have appealed from a judgment rejecting their demand for damages for the death of their son. He was run over and fatally injured by a passenger train of the defendant company, while he was asleep, with two other boys, beside the railroad track. The basis of the plaintiffs' claim is their averment that the engineer of the train was guilty of negligence in failing to see the boys beside the track in time to avoid the accident, and in failing to sound an alarm when he did see them. The plaintiffs' son was 14 years of age, and the other boys were near that age. As their negligence in lying down so close to the railroad track ended when they fell asleep, the question of liability depends upon whether the engineer had an opportunity to avoid injuring them. Our conclusion from the evidence is that he had not. Clouds of dust and a bank of cinders prevented his seeing the boys, or recognizing that they were living beings, until it was too late to stop the train before reaching them. The engineer did not then sound an alarm, because he believed the boys were in the clear, and he feared that arousing them suddenly might cause them to move involuntarily into danger. He applied the emergency brake and stopped his train as quickly as it could have been stopped, at the same time waiving to the boys to remain lying down. When the train had stopped, one of the boys was yet asleep. Another had slid away from the track. The plaintiffs' son had been struck by some pro (Supreme Court of Louisiana. April 1, 1918.) (Syllabus by Editorial Staff.) DISORDERLY HOUSE 12 INDICTMENT STATUTES. An indictment charging that defendant "unlawfully did operate a disorderly house in Shreveport, Caddo parish, La., by then and there keeping, renting, and operating a room in the Youree Hotel for the purpose of assignation and prostitution, which room and house aforesaid, is outside the limits fixed by municipal ordinance for houses of that character," charged the crime denounced by Rev. St. § 908, providing that whoever shall be guilty of keeping any disorderly inn, tavern, ale house, tippling house, gaming house, or brothel, shall suffer fine or imprisonment, or both, as amplified by Act No. 199 of 1912, § 1, providing that the use of any room or any part of a building stitute such room for any of the purposes enumerated shall conor such part a disorderly house. Parish of Caddo; R. D. Webb, Judge. Appeal from First Judicial District Court, Miss O. Leroy was indicted for unlawfully operating a disorderly house, and, from judgment sustaining demurrer to the indictment, the State appeals. Judgment set aside, and case remanded. A. V. Coco, Atty. Gen., Lal C. Blanchard, Dist. Atty., of Shreveport (Vernon A. Coco, of New Orleans, of counsel), for the State. Levy & Crane, of Shreveport, for appellee. PROVOSTY, J. The question in this case is as to whether the indictment charges an offense. It reads: "Unlawfully did operate a disorderly house in Shreveport, Caddo parish, La., by then and in the Youree Hotel for the purpose of assignathere keeping, renting, and operating a room tion and prostitution, which room and house aforesaid is outside the limits fixed by municipal ordinance for houses of that character." Section 908 of the R. S. reads: "Whoever shall be guilty of keeping any disorderly inn, tavern, ale house, tippling house, imprisonment, or both, at the discretion of the gaming house, or brothel, shall suffer fine or court," etc. Act No. 199, p. 395, of 1912, § 1, reads: "Any house of public entertainment, or a public resort, or open to the public, conducted in such a manner as to disturb the public peace house used for purposes of prostitution or asand quiet of the neighborhood; signation outside the limits fixed by municipal ordinance for houses of that character; pro * or any vided, that the use of any room, or any part of a building for any of the purposes, or in any of the ways herein above enumerated, shall constitute such rooms or such part a disorderly house." The indictment appears to us to charge the crime which said section 908, as amplified by said act 199, denounces. The judgment appealed from, which sustained a demurrer to the indictment, is set aside, and the case is remanded for trial. (143 La. 188) No. 21312. ARNOLD et al. v. SAUER. menced with the corporeal possession of the thing, it may, if not interrupted, in law or fact, be preserved by external signs by the continuance on the property of vestiges of works erected by the possessor, or by the continued, positive, and even negative intention to possess. Appeal from First Judicial District Court, Parish of Caddo; J. R. Land, Judge. Suit by C. B. Croom and others against J. S. Noel and others. Judgment for defendants, and plaintiffs appeal. Affirmed. Reynolds & Williams, of Arcadia, and Otis W. Bullock, of Shreveport, for appellants. J. C. Pugh & Son, of Shreveport, for appellee Standard Oil Co. of Louisiana. Alexander & Wilkinson, of Shreveport, for other ap (Supreme Court of Louisiana. April 1, 1918.) pellees. (Syllabus by Editorial Staff.) TAXATION 734(7)—SALE-NOTICE OF DE- Statement of the Case. MONROE, C. J. Plaintiffs, as heirs of Where no notice of delinquency was served their parents, Calvin S. and Margaret A. on the owner, the tax sale was a nullity. Appeal from Twenty-Fifth Judicial District Court, Parish of Tangipahoa; W. S. Rownd, Judge. Suit by J. B. Arnold and H. E. Carroll against Mrs. Lillian Thompson Sauer. From judgment dismissing the suit, plaintiffs ap peal. Affirmed. R. C. & S. Reid, of Amite, for appellants. Miller, Miller & Fletchinger, of New Orleans, for appellee. PROVOSTY, J. The property of defendant, Mrs. Lillian Thompson Sauer, was assessed in 1905, to "Mrs. William Thompson," and was sold to plaintiffs in 1906 under said assessment. Plaintiffs have brought the present suit to confirm the tax title. No notice of delinquency was served on defendant, hence the tax sale was a nullity; and as she has been continuously in the actual possession of the property, prescription cannot be invoked against her. The judgment dismissing the suit is af firmed. (143 La. 189) No. 21435. CROOM et al. v. NOEL et al. Croom, sue for the recovery of the major interest in a tract of land, containing about four acres, bordering upon Ferry Lake, Caddo parish, which they allege is collusively and unlawfully withheld by defendants J. S. Noel, Atlas Oil Company, and Standard Oil Company, of Louisiana, and which is said somewhat to resemble in contour a horseshoe. with the toe extended into the lake and the open heel connecting it with the main line of the shore. They seek also to recover $300,000 as the value of that number of barrels of oil alleged to have been taken by defendants from the land through an oil well known as "Noel No. 1" and $50 per day for such damages as they may sustain by the further detention of the property. Defendants Noel and the Atlas Company aver that Noel bought the land in question from plaintiffs' parents in 1876, and has held possession thereof since that time in good faith under the title so acquired; that he leased it to the Atlas Company, to be explored for oil, and that the company, with great expenditure of time, labor, and money, drilled the well mentioned in the petition, to the knowledge and in the presence of a majority of the plaintiffs, who remained silent until the expenditure resulted in the discovery of oil, leaving the possession of defend (Supreme Court of Louisiana. April 1, 1918.) ants undisturbed until the bringing of this suit in 1914; wherefore they plead estoppel and the prescription of 10 and 30 years. The Standard Company denies knowledge of any defect in the Noel title, denies collusion or fraud on its part, alleges that it bought the product of the well "Noel No. 1" from the Atlas Company in good faith, and calls that company and its lessor in warranty. It is shown that plaintiffs include most of the heirs of C. S. and M. A. Croom, who acquired the property in dispute from Timothy Mooring, who acquired it from the govern ment. Defendant Noel exhibits as a muniment of title a notarial act of date July 25, 1876, to the lake upon both sides, so that, with the reading in part as follows: * "Came and appeared Margaret A. Croom, who, by and with the consent and authorization of her said husband, Calvin S. Croom, declared that they, by these presents, sell, convey, and deliver, with full guarantee of title and with complete transfer and subrogation of all rights and actions of warranty against all former proprietors of the property presently conveyed, unto James S. Noel and Eben C. Hearne, present, accepting same, the following described property, to wit, a piece of land in Mooringsport upon the bank of the lake upon which is located their steam cotton gin and mill and cotton press in fractional section 25, * * * with privilege of getting into, and out from, said gin and mill house. This sale is made for the consideration of the sum of $1 cash, the receipt of which is hereby acknowledged." On January 16, 1877, Eben C. Hearne executed an act conveying with full warranty his undivided half interest in the property so acquired to his coproprietor, Noel, the property being described as: 25 "A certain piece of land in fractional section * in the town of Mooringsport, together with all the buildings and improvements thereon, including mill, cotton gin, and press, and all machinery and appurtenances of the same, being the same property acquired by the parties hereto jointly from Mrs. Margaret A. Croom by an act dated July 25, 1876," etc. It appears probable that at the time of the foregoing transactions Mooringsport was not an incorporated town, and at all events, that it was not laid off in squares and streets; that C. S. Croom was a merchant and an owner of real estate; and that, in both capacities, he was interested in having added to the business attractions of the place a cotton gin and press and gristmill. Noel, who is not shown to have previously resided there, testifies that Croom was as much interested in the enterprise as he. It is not, therefore, surprising that Croom should have been willing to contribute the site if others were willing to establish and operate the plant, the more especially as the then assessor says in his testimony. "I should think any land right at Mooringsport for building purposes would be worth something like that [$15 or $20 an acre]," and it is evident that the land contributed was not in the business center, and that its estimated area at that time was but one or two acres, the quantity available depending upon the stage of the water, which, when high, covered the place where the well Noel No. 1 is now located, within 100 feet of the site of the gin, from which it follows that the value of the contribution may have been from $15 to $40. It appears from the language used in the act, corroborated somewhat by the testimony of Noel, that the improvements were erected before Croom conveyed title to the land; and Noel also testifies, and his testimony is corroborated, that, in order to make room for them Croom moved back his fence, and that he (Noel) built a fence which (possibly connecting with Croom's fence) extended across the neck of the point (if it can so be called) water upon three sides, the point, thereafter called the "gin lot," was inclosed all around. Mr. J. E. Croom, one of the plaintiffs, testifies that it is necessary to fence in a cotton yard where cotton is rolled out after it is ginned and baled in order to keep it from being injured by cattle, and perhaps for other reasons; also that the cotton from the particular gin in question was rolled out of it, "all over the point," but that the place where the well is now located was then "the edge of the water"; the fact being that the greater part of the lot now in dispute has been taken out of the category of what might be called overflowed lands by the improvements since 1876 in the methods of dealing with the waters of the state. It is undisputed that Noel operated his gin, press, and mill as thus established (also a woodyard, at times) from 1876 until the building through that country of the Kansas City Southern Railroad in 1895 or 1896, when he moved the gin to some point on the railroad, and that during that thine his possession of the property was uninterrupted. When he moved he left a fence on the place, a boiler, a cistern, and some old machinery, and had no intention of abandoning his possession. In 1903 he rented the place to J. E. Cochran, who, finding that the fence had disappeared, rebuilt it, thereby with the water front again inclosing the entire point, which, for 7 or 8 years, he made use of as a pasture and for the raising, so far as it was cultivable, of small crops; about half an acre near the northwest corner having been, and being now, fenced and occupied with Noel's permission by J. H. Lee, who went there in 1911, lives in a houseboat, and raises chickens, and perhaps a few vegetables. C. S. Croom lived until 1896 and his wife until 1897, and neither of them ever questioned Noel's title or right of possession, and members of his family, some of them plaintiffs herein, have lived in Mooringsport since that time and raised no such question until oil was discovered upon the land. To the contrary, on October 10, 1906, all of the heirs united in the execution of an act whereby they conveyed to J. W. Champion "the land in section 25, * * known as the home place of C. S. and Margaret A. Croom, being all of the land lying east and * * * northeast of the lot or land of J. S. Noel and the point of the lake, less the land sold to R. T. Cole and B. F. Logan, * * and less also the one acre sold * to J. S. old ginhouse lot of said Noel, with all buildNoel, the said one acre being known as the ings and improvements thereon," etc. C. B. Croom says in his testimony: "Well, Judge, if you want me to tell you, my father gave when we sold the first lot there to Champion him [Noel] the ginhouse site, and we sold all except an acre lot where the ginhouse was. Q. Now do you mean that you ginhouse stood? A. No, sir. Q. What did you sold everything except the acre upon which the mean? A. Well, what was inclosed around there; the inclosure around the house there that is, around the homestead; and Mr. Noel recognize the grantee as entitled to a piece did not get any of that. Q. Mr. Noel had of land which is, at the same time, on the his ginhouse on the point down there, didn't he? A. Yes, sir. Q. And continued to have it bank of the lake and has located upon it a there until the Kansas City Southern Railroad steam cotton gin, etc. But the fact that a was built? A. Yes, sir. Q. Kept it and claim- lot is described as having a building on it ed it? A. Yes, where the ginhouse was. Qdoes not necessarily imply that it is no largThe ginhouse lot? A. Yes, sir. Q. The Kansas City Southern Railroad was built in 1895 or 1896? A. Yes, sir." At another place in his testimony we find that Mr. Croom was asked concerning a circumstance that seems to have occurred not a great while before the discovery of oil on the land here claimed. It appears that some one was fencing in the land, or part of it, and that he notified Noel; and, defendants' counsel being curious to know why he did so, his cross-examination ran as follows: "Q. Why did you notify him that they were fencing up his land if it belonged to you? A. I wanted him to know that they were fencing it up; it was the Croom's heirs land. Q. Well, why did you want to notify Mr. Noel that they were fencing up his land, unless he owned it? A. Well, he had a deed to where the ginhouse stood there, on the ginhouse lot, where the ginhouse was located. Q. Why did you notify him that they were fencing up his land, if it was not his? A. Well, I told him it was mine, too." Noel corroborated the testimony so given, as to the notice that some one was fencing his land, but, not being asked about it, neither corroborates nor contradicts the statement of the witness, "I told him it was mine, too." Opinion. er than the building; and in such case if the boundaries of the lot are not sufficiently defined they may be established by evidence aliunde the act of conveyance, including particularly evidence as to the construction which the parties to the contract have themselves placed upon it. C. C. 2474; Abadie v. Lee Lumber Co., 128 La. 1014, 55 South. 658; Phelan v. Wilson, 114 La. 813, 38 South. 570; Robinson v. Atkins, 105 La. 790, 30 South. 231; Dickson v. Dickson, 36 La. Ann. 870. [2] Beyond that, "the ownership of immovables is prescribed for by 30 years' possession under a chain of title without the need of a title or possession in good faith;" all that is required being that the possession be held in the character of owner, and that it be continuous, uninterrupted, public, and unequivocal, and where it has commenced with the corporeal possession of the thing it may, if not interrupted in law or in fact, be preserved by external signs, by the continuance on the property of vestiges of works erected by the possessor, or by the continued, positive, or even negative intention to possess. C. C. 3500, 3501, 3502, 3442, 3443, 3444. And such possession the defendants herein have shown. The judgment appealed from is therefore The following excerpt from the brief filed in this court by plaintiffs' counsel sufficiently discloses the grounds relied on for a re-affirmed. versal of the judgment from which plaintiffs have appealed, to wit: "First. Plaintiffs contend that the above document (referring to the conveyance to Noel) does not transfer any land for lack of definite description, except that covered by the 'steam cotton gin and mill and cotton press.' "Second. Plaintiffs contend that the document, because of the vile price and lack of definite description, was merely a license to build and operate a steam cotton gin and cotton press' on Mrs. M. A. Croom's land, with the privilege of using any part of Mrs. Croom's land adjacent to and not covered by the buildings in getting into and out from the said gin and mill house." No. 22186. (143 La. 196) MARKS v. LOEWENBERG et al. (Supreme Court of Louisiana. Oct. 30, 1916. 1. COURTS 224(11) LOUISIANA SUPREME COURT-APPELLATE JURISDICTION-AMOUNT. The Supreme Court has appellate jurisdiction in all cases where the matter in dispute, or the fund to be distributed, whatever may be the amount therein claimed, shall exceed $2,000. On the Merits. The second contention-that Noel acquired only a license to build and operate a gin, etc., 2. HUSBAND AND WIFE 361⁄2, 45 on Mrs. Croom's land-does not appear to us to be reconcilable with the exception contained in the first contention, which admits that Noel acquired, in full ownership, at least, the land covered by the "steam cotton gin," etc.; and the first contention, we think, is founded in too narrow a construction of the description contained in the document to which counsel refer. CON TRACTS-STATUTE. Save in so far as it may have been modified by Act No. 94 of 1916, the law of Louisiana prohibits all contracts between husband and wife, unless expressly excepted, including those which may be entered into whilst the parties are temporarily in another jurisdiction; and a contract between a husband and wife, domiciled in this state, but temporarily sojourning in another state, whereby the wife conveys her paraphernal property to her husband, to be by him held [1] The thing sold was partly described in trust for the benefit, and during the life, of a as "a piece of land on the bank of the lake," third person, is within that prohibition. and we construe that part with the other, 3. TRUSTS 4 CONTRACT CREATING TRUST -ENFORCEMENT. reading, "upon which is located their steam Apart from the incapacity of the parties, cotton gin," etc., and, giving effect to both, such a contract, having for its purpose the es |