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who lived in Mississippi, be cited through a (2) Is Andrews estopped to assall the vacurator ad hoc, and, in the event of an ad-lidity of the judgment so rendered because verse judgment on the question of title, that he was informed of the appointment of the he be condemned for the price which had curator ad hoc, consulted with the plaintiff been paid him. There was judgment in fa- in the case (defendant herein) before and vor of Simonds and Perkins on the question during the trial, appeared on the trial as a of title and in favor of Sheehy and against witness, and was advised that, in the event Andrews on the call in warranty, and, Shee- of an adverse judgment on the question of hy alone appealing, the judgment so rendered title, the judgment now assailed by him was affirmed by this court. In re Sheehy, would be rendered ? 119 La. 608, 44 South. 315. Thereafter An (3) Did he after its rendition promise to drews brought this suit to annul the judg- pay the judgment (in question) if granted a ment obtained against him, on the ground delay in which to raise the money, and, if so, that, being a nonresident, he could not have did the promise constitute such an acquiesbeen brought into court through substituted cence in the judgment as to preclude the service, to which Sheehy (made defendant) present attack upon it? answers that the judgment is good, for the (4) Is the demand here made by Sheehy reason that Andrews was residing in Pointe for judgment against Andrews as in the orig. Coupée when he sold the property, and moved inal suit a demand in the alternative and in to Mississippi afterwards, and that he (de reconvention, which Sheehy has the right to fendant) had no other way to bring him into assert in this proceeding? court on his warranty of title, save through The district court rendered judgment in a curator ad hoc. He further alleges that, favor of Andrews, decreeing null and void should the court hold that the judgment is the judgment herein attacked by him, and not good on account of the substituted serv- ordering that the inscription thereof be canice, Andrews should be held to be estopped celed from the mortgage records; and in to assail its validity, for the reason that he favor of Sheehy on his reconventional dewas at once advised of the appointment of mand, condemning Andrews to pay him $4,the curator ad hoc, and, prior to and during 637.50, with interest, further ordering that the trial, consulted and advised with the the costs of the main demand be paid by counsel for plaintiff (defendant herein) as to Sheehy and those of the reconventional de the prosecution of the suit, was fully inform-mand by Andrews. Both parties have aped that in the event of an adverse judg. pealed. ment on the question of title he would be

Opinion. condemned for the price for which he had sold the property, and that, after said judg.

1. It is well settled that nonresidents canment was rendered, he acquiesced therein not be brought into the courts of this state by promising to pay it, if time were given upon ordinary demands for money, by substihim, which condition was complied with. tuted service. Pennoyer v. Neff, 95 U. S. 730, Defendant then, assuming the character of 24 L. Ed. 565; Haddock v. Haddock, 201 plaintiff in reconvention, alleges:

U. S. 562, 26 Sup. Ct. 525, 50 L. Ed. 867; “That, in the event the court should hold that Hobson et al. v. Peake, 44 La. Ann. 383, 10 your reconvenor's said judgment against the South. 762. And the rule applies with equal said Andrews should be annulled,

then force where the nonresident is called in warand in that case the said Charles L. Andrews is ranty. Smith v. McWaters, 7 La. Ann. 145; justly • indebted to your reconvenor in the full sum of $4,037.50, with legal interest Pagett v. Curtis, 15 La. Ann. 451. Moreover, for this, to wit,"

à demand in warranty in legal contemplation

arises in an action only when made by the And he proceeds to set forth his cause of party who has been sued. ' Laughlin v. La. & action as in the original suit. He further

N. 0. Ice Co., 35 La. Ann. 1185; Foote v. makes certain allegations, upon the basis of Pharr, 115 La. 35, 38 South. 885; Clapham which he caused John Wesley Green to be et al. v. Clayton et al., 118 La. 419, 43 cited, and prayed that a transaction, pur- South. 36. porting to be a sale of land by Andrews to

2. Defendant herein alleges in his answer Green, be set aside, either as simulated or as

that: having been made in fraud of his rights as a creditor of Andrews, but Green filed an ex. appointment of the said curator set aside, nor

"The said Andrews took no steps to have the ception, which was maintained, with the re to formally appear in said suit and make a sult that he was eliminated from the suitdefense, if any he could, to your respondent's (Andrews v. Sheehy, 122 La. 464, 47 South. call in warranty, thus tacitly acquiescing in the 771), leaving before the court only Andrews abide by the judgment of the court."

entire proceeding, and tacitly consenting to and Sheehy, as between whom the following issues were presented for decision, to wit: Andrews was, however, under no obliga

(1) Was it competent for the district courttion to see that Sheehy laid the foundation for the parish of Pointe Coupée to bring for a valid judgment against him by having Andrews, a resident of the state of Missis- him cited, and his consultation with Sheehy's sippi, before it for the purposes of the mon- attorney as to the prosecution of the proeged judgment rendered against him by cit-ceeding, and his appearance therein as a

est in having Sheehy's title confirmed with- , tiff should be obliged to answer without out assuming that he intended at the same pleading to the jurisdiction (Code Prac. art. time to waive any of his own rights in order 377). By Act March 20, 1839, 87, article to facilitate Sheehy in the obtention of a 375 of the Code of Practice was amended judgment against himself, even though he by the addition of a paragraph, which now might have felt or known that he would appears as a proviso, reading as follows, to eventually be liable in the event of an ad- wit: verse judgment on the question of title for

Provided, that, when the plaintiff resides out the price that Sheehy had paid him. As to of the state, or, in the state, but, in a different the allegation that he had full knowledge parish from the defendant, said defendant may that in such case judgment would then and institute a demand in reconvention against him, there be rendered against him, there was no

for any cause, although such demand be not,

necessarily, connected with, or incidental to, attempt to sustain it by proof, and evidence the main cause of action.” to that effect would have been inadmissible if offered (Harris v. Alexander, 1 Rob. 30), In the instant case, when the defendant set since (to quote language used by our prede- up (what we shall for the present call) his cessors) :

demand in reconvention, plaintiff filed a mo"It has been repeatedly held that knowledge tion which reads as follows: of the suit, however clearly brought home to a defendant, does not supply want of citation, Charles L. Andrews, plaintiff in the above-styl

“And now into this honorable court comes which is the foundation of the proceeding. Adams v. Bazile, 35 La. Ann. 102; Hobson et that George B. Sheehy, defendant,

ed and numbered cause, and, on showing * al. v. Peake et al., 44 La. Ann. 383, 10 South. has embodied in his answer herein certain al762.

legations and a prayer, which said defendant 3. There is no doubt that a defendant may showing that said allegations and prayer are

terms a reconventional demand, and on further waive his right to a citation by appearing not a reconventional demand in any sense, and for any other purpose than to plead the want the injection of the same into this suit is an ilthereof. Louque's Digest, p. 112, IV No. 1; legal cumulation and confusion of actions, and

on further showing that same are in direct conTutorship of Minors Byland, 38 La. Ann. flict with other allegations contained in de756; Bartlett v. Wheeler, 31 La. Ann. 543. fendant's answer herein, and that, according to

And he may acquiesce in a judgment il- the allegations of the defendant's answer, the legally rendered by voluntarily executing it, tional demand,' are not based upon any pres

said allegations and prayer, termed a 'reconvenor by permitting it to be executed, without ently existing cause of action, and upon further opposition; he being in the parish. Code showing that John W. Green, one of the dePrac. arts. 567, 612. But no such acqules has been dismissed from the suit by a judgment

fendants in the said reconventional demand, cence as is thus required has been shown in of this honorable court, which judgment has this case; the most that is alleged or prov- been affirmed by the Supreme Court of the ed being that Andrews promised to pay the state;, and on further showing that it would be judgment, if granted time, which is not the

an injustice to appearer to require appearer

to go to the inconvenience and expense of sesame thing as executing it, or permitting it curing evidence to controvert the allegations to be executed; "he being in the parish." contained in said reconventional demand

4. Prior to 1839 the Code of Practice pro- wherefore appearer moves this honorable court vided for demands in reconvention substan

to order and decree that the allegations and

prayer, which defendant terms a 'reconventiontially as follows, to wit:

al demand' and which are embodied in his anThat the demand which the defendant in-swer herein, be stricken from said answer and stitutes in consequence of that which the from the record herein," etc. plaintiff has brought against him is termed a demand in reconvention (Code Prac. art.

The motion so made was denied by the dis374); that, in order to entitle the defendant trict court, which, as we have already stated, to institute a demand in reconvention, such gave judgment on the reconventional demand demand, though different from, should neces

in favor of defendant (as plaintiff in recon. sarily be connected with, and incidental to,

vention). the main action, “as, for instance, the de

The learned counsel for plaintiff in support mand instituted by the possessor in good faith of this motion argue that there was no then against him who sues to evict him, or for the existing cause of action upon which the sopurpose of obtaining the payment of the im- called reconventional demand could be predprovements made on the premises"; (Code icated. They say: Prac. art. 375) that, if the demand instituted | “Defendant has skillfully and ingeniously inter by the defendant be in its nature independ- woven in his answer what he would have the ent from the main action, it should be con

court either construe as a reconventional de

mand, or ignore entirely, according as the court sidered a principal, and not a reconvention- may decree the personal judgment against Anal, demand, and should be brought at the drews to be invalid or valid. We challenge dedomicile of the plaintiff (Code Prac. art. 376); fendant to cite one single decision in which any

court either of this state, or of any other state, and, finally, that "in all cases of reconven

or country, has recognized the validity of a retion” (i. e., in all cases where the demand conventional demand pleaded in the alternative falls within the definition as given) the de- and based upon the possible future eristence of fendant might plead it in his answer, or by

a state of facts which would constitute a cause separate suit, before the court in which the of action, if they existed, but which may never

erist, and which the reconvenor positively as

They go on to'say that Sheehy in alleging | spect different from the position that he that the judgment sought to be annulled is would have occupied if (he being in possesvalid and binding has put himself out of sion) Simonds and Perkins had sued for the court with respect to his demand in reconven- recovery of the land, and, after asserting the tion, since the latter is a demand for a judg. validity of his title, he had alleged in the ment for the same amount against the same alternative that he was at least a possessor party based upon the same cause of action. in good faith, and had prayed, in the alternaThey further say that, if such pleading be tive (to a judgment maintaining his title) allowed, the consequence will be that An- that he be allowed to recover for improve drews, who came into court solely for the ments made by him. In such case he would purpose of asserting his constitutional right have been within the particular illustration to require that all personal suits against him used in Code Prac. art. 375, and yet (to parshall be brought in his own state, will find aphrase the language of the brief filed by that he, “ipso facto, loses the right," and will plaintiff's counsel) his demand in reconvenlearn (quoting the language of a distingushed tion, pleaded in the alternative, would have modern author) that “police protection is only been based upon the possible future existence a polite name for fracture of the skull.” of a state of facts which might never have

The learned counsel refer to the opinion in come into existence, and which in his answer the case in which Green was eliminated, and he was positively asserting did not exist. called attention to the fact that this court Green was eliminated from the case, because there said:

he had brought no suit and was making no “A reconventional demand, according to ar- demand against the defendant, and defendticle 374, Code of Practice (French text), is one ant's demand against him was not, therefore, which the defendant brings himself against the one which the defendant brings himself plaintiff, in consequence of the demand which he has instituted against him.” Andrews v. against the plaintiff, in consequence of the deSheeby, 122 La. 464, 47 South. 771.

mand which he (plaintiff] bas instituted against From which they deduce:

him (defendant).” Moreover, in demanding, as “That, under this definition, and under our ment sought to be annulled be maintained, or,

against the plaintiff, Andrews, that the judguniform and well-settled jurisprudence a reconventional demand must always be a definite and in the alternative, that Andrews be condemned certain demand, based upon a definitely alleged to return the price paid him for the property, cause of action." (Italics by the counsel.)

and as against Green that a transaction be The answer filed by defendant alleges spe-tween him and plaintiff be annulled, Sheehy cifically enough that he bought from plaintiff, was attempting to bring different defendants with warranty of title, S. 12 of section 79, before the court in the same suit on separate sections 83 and 84, and section 78, in town.

causes of action. As to Andrews, however, ship 4 S., range 8 E., S. E. land district of he merely availed himself of the opportuniLouisiana, west of the Mississippi river, forty that Andrews gave him, not exactly to adwhich he paid $8,000, cash; that by the judg- minister a “fracture of the skull,” but to rement rendered in the proceeding instituted by quire Andrews to disgorge the price that he him against Simonds and Perkins, who were had received for property that he had sold claiming under an adverse title and against without being the owner. That it was complaintiff, as his warrantor, he was evicted petent to make a demand to that effect, as from sections 83 and 84; and that the price of the alternative to the prayer, that the judgthose sections was $4,637.50, and, after pray ment, condemning Andrews for such price, ing that the judgment which he has already and attacked by Andrews, be maintained, obtained for that amount be sustained, the there can be no doubt. prayer of his petition proceeds as follows: Castaing v. Improvement Co., 5 Rob. 177; “And, in the alternative, reconvenor prays

Succession of Rougan, 7 Rob. 436; Mathias v. that, in the event that the court should hold Lebret, 10 Rob. 94; Smith v. Mechanics' Bank, that respondent's judgment against the said 6 La. Ann. 625; Wood v. Harrell, 14 La. Ann. Andrews should, be annulled and set aside, there 61; Webre v. Gaillard, 16 La. Ann. 189; Smith be judgment in reconvenor's favor, and against said Andrews, condemning said Andrews to pay

v. Donnelly, 27 La. Ann. 98; Dilzell Eng. Co. to your reconvenor the full sum of $4,637.50, as v. Lehmann, 120 La. 280, 45 South. 138. The the purchase price of said sections 83 and 84, objection, suggested in the brief, that plainwith legal interest," etc.

tiff, having come into court only to attack a So far as the existence of a cause of ac void judgment that had been rendered against tion is concerned, there does not appear to him, did not submit himself to the jurisdicbe any appreciable difference between the tion for any other purpose, was not presented present position of the defendant and the po- by the pleadings. To the contrary, plaintiff sition that he would have occupied if, having invoked the jurisdiction for the determination been sued for the land by Simonds and Per- of the question whether defendant's demand kins, he had asserted the validity of his title, for the price of the property discloses a cause and (assuming that he could reach him) of action, and whether it could be pleaded in bad then called plaintiff in warranty and the alternative. He said nothing about any prayed judgment against him in the event of want of jurisdiction ratione personæ, and it the failure of the court to maintain his de- is too late to raise that question now. For

the judgment appealed from is correct, and Plaintiff's complaint is that he was poor it is accordingly affirmed, the costs of the ap- and in necessitous condition, and was by it peal to be divided between the two appellants. forced to sell bis land.

Plaintiff on the 1st of October, 1907, ten

dered the $100 purchase price, interest, and (125 Lan 227)

cost, and a short time thereafter instituted No. 17,516.

this suit. HYDE v. BARRON.

The defendant admits that he bought the (Supreme Court of Louisiana. Nov. 29, 1909.) right to cut timber described in plaintiff's 1. LOGS AND LOGGING (§ 3*)-SALE OF STAND- petition, but denies that the price was inadeING TIMBER-LESION BEYOND MOIETY.

quate. He avers, on account of the location Timber sold while standing on the land of of the timber, its inaccessibility, the price the vendor continues to be an "Standing trees are immovable even when sep- paid was good and sufficient. arated in ownership." Act No. 188 of 1904. The district court decided in favor of The sale of timber comes within the provisions plaintiff, annulling and setting aside the sale, of article 1861 of the Civil Code, according to which relief is granted the vendor of an "im- for leison beyond moiety, on the payment by movable if the price given is less than one-half plaintiff to defendant of $100, with interest of the value.

from the date of the sale, $79, value of tim[Ed. Note. For other cases, see Logs and ber cut and removed by the defendant. Logging, Dec. Dig. $ 3.*]

There was a sale entered into between 2. VENDOR_AND PURCHASER (

813*) - REME- , plaintiff and defendant. DIES OF VENDOR-LESION BEYOND MOIETYBasis OF RELIEF NECESSITY FOR FRAUD,

The timber was an immovable. To support the action of lesion beyond It has been considered in several decisions moiety there is no need to show fraud, for the recently that timber sold while standing on remedy given for lesion is founded on the im- the land of the vendor continues to be an implied error of the vendor, or upon the imposition upon him. Inadequacy of price, less than movable. one-half the value, is considered an imposition, The statute is quite plain. although not in its nature a fraud. The insufficiency of price is the imposition.

“Standing trees are immovable even when (Ed. Note.-For other cases, see Vendor and separated in ownership." Act No. 188 of 1904. Purchaser, Dec. Dig. & 13.*]

Being a statutory immovable, the court 8. VENDOR AND PURCHASER (8 13*)-REME

DIES OF VENDOR-LESION BEYOND MOIETY- was constrained to maintain the plea of VALUE TO BE CONSIDERED AS OF DAY OF lesion as when title to land is involved. Mrs. Sale-EVIDENCE.

Nanny Smith v. Hodge Co., 123 La. 959, 49 In fixing the value of the property, the

South. 655. price must be considered as of the day of the sale. Civ. Code, art. 1871. And the value of Before proceeding further toward deciding the property, in order to support the action of the case, there is a question involved in re lesion, must not be left to conjecture, but must gard to the testimony, which we will dispose be fixed and certain, and in fixing this value a high estimate will not recommend itself to the of at this time.

After witnesses had been examined and (Ed. Note. For other cases, see Vendor and the evidence closed, the defendant filed a Purchaser, Dec. Dig. 8 13.*]

motion to strike out the evidence of named (Syllabus by the Court.)

witnesses taken out of court. The contention 4. Logs AND LOGGING ($ 3*) — SALES OF of defendant is that none of the testimony STANDING TIMBER-LESION BEYOND MOIETY.

was introduced in evidence and that it was In an action by the vendor of timber for lesion beyond moiety, evidence held to show that taken without the consent of counsel. it was sold for less than half of its value.

It was agreed by plaintiff and defendant (Ed. Note.-For other cases, see Logs and that the testimony of these witnesses would Lögging, Dec. Dig. $ 3.*]

be taken out of court and placed in the recAppeal from Thirteenth Judicial District ord and the case continued. Court, Parish of Rapides; W. F. Blackman, This agreement led to misunderstanding Judge.

between counsel. Action by William A. Hyde against Thom The record fails to show that the motion as C. Barron. Judgment for plaintiff, and of September 30, 1906, asking that C. W. Andefendant appeals. Affirmed.

drews be appointed expert of the timber, Robt. P. Hunter & Sons, for appellant. was ever served on defendant or his counsel. R. H. McGimsey, for appellee.

That issue presents itself under unfavor.

able aspect to the courts and, doubtless, to BREAUX, C. J. Plaintiff instituted this each of the counsel. suit to have a sale decreed null on the ground From any point of view, whether the stateof lesion beyond moiety.

ment of facts has been closed, as noted by One hundred dollars was the purchase the stenographer, or whether it was agreed price for the merchantable pine timber stand- to complete the testimony out of court, as ing on 160 acres of land.

noted by the clerk, and the case continued, The year 1914 was the time fixed to cut the evidence of this witness does not seem down and haul away the timber.

to have been contradictorily taken.

court.

It was due to the defendant or his coun

In a

case of merchantable lumber, the sel to have the motion served and proceed diameter could be 12 inches and even less ; contradictorily with the defendant or his but in case of lumber for rafting 18 inches counsel to have the expert appointed.

diameter was required, as smaller trees freThis was not done, and for that reason the quently sink. Those who make up rafts will evidence will not be considered.

not put timber in raft of a less diameter. We are not quite so confident with regard This would make a decided difference in to other witnesses who were examined, also the result. out of court.

We have not taken that view. The conCounsel for defendant was present at the tract calls for "merchantable” timber. That examination and cross-questioned the wit- timber which was not merchantable had a nesses.

value; it was not out of commerce, even if It really does not affect the result one it could not be rafted. way or the other. There is sufficient other Plaintiff owned a sawmill about two miles testimony before the court to sustain plain from the place, and it does seem that the tiff's demand.

timber bad value for his mill without the Recurring to the merits of the case, we necessity of floating it in raft. will state that, in fixing the value, we have The contract said "merchantable," and we borne in mind that the value of the property will be governed by the word, and the issues must be considered as of the year 1904, the will be considered from that point of view. date of the sale; that is, the value at the

There was inadequacy of price. That was time of the sale. Civ. Code, arts. 1871, 2490;

made evident by the testimony of defendant's Beale v. Ricker, 7 La. Ann. 667.

son, C. W. Barron, who worked and was conAs relates to the price of the timber:nected with the enterprise of the father. Whilst it may be that 50 cents per Min

He was familiar with plaintiff's place. 1904 is a very low price, it is sustained as

He had made estimates of the timber. Uncorrect by a preponderance of testimony.

der his supervision trees were cut down of The estimates of witnesses range from 50 the timber in question. cents to $2 per M. In fixing value of property in matter of been cut to the extent of 60,000 feet on less

He testified that good rafting timber had lesion, a high estimate does not recommend than 10 acres of land. Itself. The lowest in this instance has every ap 10 acres produced that many feet, 160 acres

According to this testimony, if less than pearance of falling within the intent of the would produce more than 950,000 feet, at law.

50 cents a thousand equal to more than $450. The value of property in order to support

As the price was $100, the sale comes withthe law of lesion must not be left to conjecture. There must be certainty.

in the provision of article 1861 of the Civil Our learned brother of the district court, Code, according to which relief is possible who followed the trial in its progress and if the price given is less than one half of

the value. heard the witnesses, was of opinion that 50 cents per M is a fair price.

Mr. Lee, a timber man, with many years' We the more readily agree with him as to experience, some time prior to this suit ofthat price because in reading the testimony fered to buy this timber on the basis of 10,we have found that not one of the witnesses 000 feet to the acre. thought that it was worth less.

No one questioned the sincerity of the offer

All considered it as There is, in consequence, as to that amount to buy on that basis. En agreement, although a number of wit. an earnest and honest offer to buy. nesses thought that it was worth more. It

Although this offer was made some four is evident then that the timber was worth at years after the sale, the dimensions of tim. least that much. The evidence is therefore ber does not increase to such an extent in strong and conclusive as relates to that that length of time as to make the difference amount.

in measurement a matter of any importance. That is in strict compliance with law that

But be that as it may, taking the evidence it should be strong and conclusive. Beale as a whole, we are of opinion that the numV. Ricker, 7 La. Ann. 667; Demaret v. Haw. ber of feet fixed by our brother of the diskins, 8 La. Ann. 483.

trict court is about correct. The defendant sets up the theory that the Learned counsel for defendant in their timber was not only to be merchantable, but brief state that fraud was neither pleaded that it was to be such timber as could be nor proven. rafted and floated away.

We can only meet this by saying that there This theory is not sustained by the facts. is no necessity for such proof in an action

The contention of defendant, in defense of for lesion. his theory, was that inasmuch as the tim No other inference can be drawn from the ber had to be rafted away at that time, as text of the case of Beale v. Ricker, cited it could not be hauled, the word “merchant- supra. able" includes only such timber as could be The article of the Code is plain. The rem

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