SUCCESSION OF W. REGAN-FANNY CUTTER, Opponent and Appellant. S. B. died, leaving an infant child; his widow, very shortly after his death, lived in concubinage with W. R., who took possession of the property of the deceased and treated it as his own, and to whom, some years later, she was married. The property of S. B. was never inventoried nor administered, nor did the widow take out letters of tutorship of her minor child by the first husband. When about twenty-eight years of age, the child of S. B. sued the succession of W. R. for her interest in her father's estate, of which he had taken possession. To this action the defendant pleaded the prescription of four years, under Article 356 of the Civil Code. Held: that W. R. was in no sense a tutor, but rather a self constituted agent or intermeddler, and that the prescription of four years was inapplicable. A PPEAL from the Fourth District Court of New Orleans, Strawbridge, J. Van Matre and Roselius, for the Executrix. L. Spring and J. R. Grymes, for opponent and appellant. Benjamin & Micou, for Mrs. Regan. Clarke & Choiseul, for the assignee. BUCHANAN, J. Fanny Boyd, wife of S. W. Cutter, is appellant from a judgment of the District Court, sustaining the plea of prescription to a claim set up by her against this succession, as heir of her deceased father, Samuel Boyd, and of her deceased mother, Mary Regan The facts as disclosed in the evidence, are as follows: Samuel Boyd died in New Orleans in September, 1824, leaving an infant child, the appellant, issue of his marriage with Mary Boyd, his surviving widow. The property in possession of Samuel Boyd at his death, consisted of two slaves, a number of drays and horses, and the stock of a coffee-house and boarding-house; the whole estimated by witnesses, at five to six thousand dollars in value. After Boyd's death, his widow continued to carry on his business, with the assistance of William Regan, who had been in her husband's employ as a drayman; with whom she cohabited as man and wife from a period immediately succeeding her husband's death, and who exercised the entire control over the business and property, treating it as his own. The coffee-house was known as Regan's coffee-house. Mrs. Boyd never administered on the estate of her husband, no inventory was made of the same, neither did she take out letters of tutorship of her minor child, who appears from the evidence, to have been called in her childhood by the name of Regan. Although Regan and the widow Boyd lived together, as above said, from the time of Boyd's death, they were not married until the 3d of September, 1829. Mrs. Regan died in February, 1843, and Regan in March, 1852. Mrs. Cutter made her claim against Regan's estate in July, 1852, at which date she must have been about twenty-eight years of age; and the prescription which has been pleaded in bar of her action is that of four years, under Article 356 of the Civil Code, which reads as follows: "the action of the minor against his tutor, respecting the acts of the tutorship, is prescribed by four years, to begin from the day of his majority." Wil We do not think the prescription of four years applicable to this case. liam Regan was never the tutor of the minor Fanny Boyd, either by appointment of court, or constructively, under Article 273 of the Civil Code, by the decision of a family meeting called previous to his marriage with her mother, for the purpose of retaining the tutorship in the hands of her mother. The obliga REGAN. tion of Regan towards the appellant was rather that of a self constituted agent, SUCCESSION OF or intermeddler; and there is a very remarkable document in the record, emanating from him, of which the only reasonable interpretation would seem to be, a recognition on his part, of the extent of his obligations towards his wife and her child by her first marriage, arising out of his conversion of the property of Boyd's succession to his own use. The document in question purports to be a sale by authentic act of certain real estate and slaves, for a price of four thousand one hundred dollars, by Regan to his wife, on the 18th January, 1843. In this conveyance, although the parties had been married nearly fourteen years, yet the vendor is described as an unmarried man, and the vendee as a widow. The extraordinary renunciation of status by Mrs. Regan, implied in this notarial act, appears to be only explicable upon the idea that the intention was to secure to the vendee and to her daughter the equivalent of what had come into Regan's hands many years before, from Boyd's estate. There are several circumstances related by the witnesses which favor this view. Thus, Regan mentioned to his friends that he was apprehensive of trouble from Mrs. Cutter, "but she had better let him alone, and he would do what was right." Again, Mrs. Cutter has actually possessed as owner and inhabited the house at the corner of Nayades and Erato streets, included in this sale, from its date to the present time. As a sale, the document in question is invalid for want of capacity in the parties to contract, the vendor and vendee being proved to have been at the time husband and wife. C. C. 2421. But it is not without importance in the point of view above mentioned, as a circumstance in appellant's case. We are justified by the evidence in estimating Samuel Boyd's property at the time of his death, at about five thousand dollars. Deducting some horses proved to have been sold by his widow, that property came into the hands of Regan, and was treated by him as his own. The legal presumption, in the absence of proof to the contrary, is, that it was property of the matrimonial community of Boyd and his wife. Consequently one-half belonged to the widow, and onehalf to the appellant, as the only child of Boyd. For this half, amounting at a reasonable estimate, to two thousand and fifty dollars, the appellant has, by Article 3283 of the Code, a legal mortgage on the property of William Regan, from the 3d September, 1829, the date of his marriage with the widow Boyd. The appellant is also entitled to claim as heir one-third of the estate of her mother, which has not yet been liquidated, so far as the record informs us. The judgment of the District Court is therefore reversed: and it is decreed, that the account of administration of William Regan's estate be amended, by placing thereon the appellant Fanny Boyd Cutter as a creditor for the sum of two thousand and fifty dollars, with legal mortgage from the 3d September, 1829; that the rights of the appellant as heir of her mother be reserved; and that the appellee, in her capacity of administrator, pay costs in both courts. Rehearing refused. BARNES V. NEW ORLEANS CANAL AND BANKING CO. There is no law nor usage, nor is there any obligation in its charter, making it obligatory on the New Orleans Canal and Banking Co. to keep a railing along the margin of the canal. A PPEAL from the Third District Court of New Orleans, Kennedy, J. Ogden & Leory, for plaintiff. E. A. Bradford and Randell Hunt, for defendant. CAMPBELL, J. We are unable to concur in the conclusion to which the Judge of the District Court arrived. It is not pretended that the road is not of the width, or that it is not built of the materials and in the manner prescribed by the charter. The charter provides that the company "shall lay out a road not less than twenty-five feet wide along the whole line of the canal, and cover the same with sand, shells, or other hard substance, so that it may at all times be suitable for carriages to travel thereon." That these provisions have been faithfully complied with with, is not denied, nor is it pretended that the road was not kept in perfect order. It is true, the witnesses generally concur in the opinion, that a railing along the margin of the canal in its whole length, is essential to the safety of persons driving over the road; and it may be conceded that, if such a railing had been erected, the accident from which the loss complained of in this case resulted, would not have happened. It is in proof that on the old shell road, which is built on the margin of the Bayou St. John, there never was such a railing, and it is notorious that this precaution is no where resorted to in building roads along the banks of our rivers or other streams. We know no law or usage making it obligatory on the company to erect such a railing; and though its construction might have rendered the road safer, and prevented the loss complained of, yet it was not the duty of the company to erect it either under the general law, usage or their charter, they ought not to be held liable. If in driving through the city or along the margin of one of our bayous, the horse should take fright and be killed from dashing himself against a lamp post or wall, or should leap into the stream and be drowned, it would hardly be pretended that the city in the one case, or the parish in the other, would be liable for the loss. The obligation of a private corporation in this behalf, is no greater than that of a public or political corporation, except in so far as those obligations may have been imposed by the act of incorporation, and it has been seen that nothing in defendant's charter makes it their duty to build a railing to prevent horses traveling the road from jumping into the canal. It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled and reversed, and that there be judgment in favor of the defendants with costs in both courts. J. A. LUSK v. J. C. SwON-C. B. CHURCH, in Warranty. L. hired a slave to S.; the slave absconded, and L. brought suit against S. for its value. S. pleaded that since the hiring he had discovered that the slave was free. L. then called his vendor in warranty, who excepted to the proceeding. Held: L. had no right to call his vendor in warranty, although it was not improper to give him this judicial notice of the allegation of the freedom of a slave which he had sold. A PPEAL from the Fifth District Court of New Orleans, Buchanan, J. R. Mott, for plaintiff. L. Hunton, for defendant. J. W. Price, for warrantor and appellant. OGDEN, J. The plaintiff instituted this suit to recover from the defendant the value of a negro hired by the defendant from the plaintiff, and taken to St. Louis as a waiter on a steamboat commanded by the defendant-the negro having absconded at St. Louis and never returned to his master, in New Orleans. Among other defences set up, the defendant relied on a special plea that the negro hired by him and who had escaped, was free, as the defendant had discovered after hiring him. The plaintiff then called in warranty Charles B. Church, who sold the negro to W. D. Dougherty, from whom the plaintiff purchased him with subrogation to Dougherty's rights of warranty against his vendor, Church. The warrantor excepted to the plaintiff's supplemental petition citing him in warranty, on the ground that the plaintiff had never been evicted by the judgment of any court, and that no suit had been brought either by the negro himself to recover his freedom, or by any one else to evict him, and that plaintiff had no right in law to call him in warranty. The exception was overruled, and after a trial on the merits, a judgment was rendered in favor of the defendant, discharging him from all responsibility for the negro's escape, but condemning the warrantor to pay the plaintiff the price of the negro with interest, from which judgment the warrantor has appealed. We think the court below erred in overruling the warrantor's exception. It is the defendant only who when sued, in eviction is permitted to cite his vendor in warranty, The Article 2495, C. C., authorises a plaintiff to notify his vendor, when he is obliged to commence judicial proceedings against one disturbing him in his possession, of the action which he is commencing. But in an action like this, to which neither the negro himself is a party, nor any one else asserting a title adverse to the plaintiff, the Article 2495 of the Code is not applicable, and there is no rule of practice which would authorise the plaintiff to proceed against his warrantor, except by a direct action in which he assumes the burthen of proving that the negro was free when he purchased him, as a ground of annulling the sale and recovering back the price. Although we are of opinion that the right of call in warranty does not extend to this case, yet we must at the same time remark, that we do not disapprove the practice of giving a judicial notice in this mode. When a person is thus called, he has an oportunity given him to participate in the proceedings, with the right to decline the call, if he thinks proper. The waiver of petition and citation would at least stand as a permanent and authentic record of the notification, and it seems equitable to allow the party making the call this privilege. It is therefore ordered and adjudged, that the judgment of the court below, 9 367 e115 38 LUSK v. SWON. appealed from, which condemns the warrantor, be avoided and reversed, and that the suit as regards him be dismissed at the costs of the plaintiff in both courts. J. P. MASON v. POLICE JURY OF THE PARISH OF TENSAS et al. The police jury of the parish of Tensas had authority under the statute of 1852, entitled "an Act to amend an Act relative to the building of the levees in the parish of Tensas," &c., &c., to pass an ordinance imposing an annual tax, ad valorem, upon all the taxable lands in the parish of Tensas, for building and repairing levees on the Mississippi river in that parish. Slidell, C. J. Campbell, J., and Ogden, J., concurring. "Taxable lands" comprise buildings on lands, so as to authorize the buildings to be estimated in making an assessment for taxation; for, in legal contemplation, buildings are a part of the land. Slidell, C. J. Campbell, J., and Ogden, J., concurring. The mere fact of an assessor copying his assessment roll from the State assessment, (there being no application for correction to the proper officers within the legal delay, and it being admitted that the estimation was fair,) does not make the assessment inoperative. Slidell, C. J. Campbell, J., and Ogden, J., concurring. The general authority to the police jury to assess and collect an ad valorem tax upon all taxable Laws which give to municipal or other corporations the right of taxation, are, pro-tanto, a delega- A PPEAL from the District Court of the Parish of Tensas, Perkins, J. dant. Stacy & Sparrow, for plaintiff and appellant. T. P. Farrar, for defen SLIDELL, C. J. Under the statute of 1850, p. 33, I am of opinion the police jury of Tensas had authority to pass an ordinance imposing such a tax as is stated in the petition and admitted in the answer, to wit, an annual tax, ad valorem, upon all the taxable lands in the parish of Tensas, for building and repairing levees on the Mississippi river, in said parish. Such ordinance was a legal ordinance, and the tax a legal tax. I am also of opinion, the words, "taxable lands," comprise buildings on lands, so as to authorize them to be estimated in making the assessment. That the mere naked soil, apart from the buildings attached to it, is alone liable to this taxation, seems to me untenable. In legal contemplation they are part of the land. The purpose of the tax is to protect the whole landed estate of the parish from injury by inundation. There might perhaps have been a propriety in the Legislature's authorizing a discrimination between lands used for agriculture and those employed for building purposes, between rural and urban property; but no such discrimination has been made; and, it is obvious, both classes of property would be benefited by protection from inundation, although the degree of benefit might perhaps be greater in one case than in the other. The mere fact of an assessor's copying his assessment roll from the State assessment, (there being no application for correction to the proper officer within the legal delay, and it being on the contrary admitted that the estimation was fair,) does not seem to me to make the assessment inoperative. |