scission of an order appointing a curator. Proceedings dismissed, and Holston appeals. Reversed and remanded.

Joel M. Durham and Mathews & Gamble, for appellant. John A. Williams, for appel

lee.

of defendant in this court, and we are not advised of the grounds upon which the judgment appealed from was predicated.

The Civil Code declares that no person above the age of majority who is subject to an habitual state of insanity shall be permitted to take care of his person and admin

right to petition for his interdiction; and that within a month after the interdiction the judge of the domicile shall appoint a curator and undercurator to the person and estate of the interdict, the appointment to be made in the same manner as the appointment of a tutor to a minor. Civ. Code, arts. 389, 390, 391, 404, 405, 406. The petition appears to us to disclose a cause of action. The judgment appealed from is therefore annulled and reversed, and this case is remanded to the district court, to be there proceeded with according to law.

MONROE, J. Andrew J. Holston present-ister his estate; that every relation has the ed a petition to the district court, in which he alleges that he is the half-brother of W. T. Bell, and for the past five years has maintained and cared for him; that said Bell re sides in Grant parish, and has property consisting entirely of real estate, there situated; that he is above the age of majority, and is subject to an habitual state of insanity and imbecility, which has existed for more than 10 years; that in 1905 John G. Bell, a resident of Grant parish, obtained an order appointing him curator of said W. T. Bell, but that no undercurator was appointed, and that said order was void, for the reason that there was no judgment of interdiction. further alleges that judgment should be rendered declaring said W. T. Bell insane and incapable of taking care of his person and property and pronouncing his interdiction; that a curator should be appointed to administer his estate, and a competent person to attend to his physical wants. He prays that W. T. Bell be cited, and that there be judgment pronouncing his interdiction and appointing a curator and undercurator and another person to attend to his physical wants; that John G. Bell be also cited; and that, after hearing, the order appointing him

He

curator of W. T. Bell "in suit No. 1,739, entitled, In the Matter of W. T. Bell, Interdict," be rescinded and annulled, and that all proceedings thereunder be decreed void. Defendant appeared, through counsel, and filed an exception of "no cause of action," which, having been maintained and the proceedings dismissed, plaintiff has appealed.

There has been no appearance on behalf

(55 South. 698.)
No. 18,136.

SMITH v. HUIE-HODGE LUMBER CO.,
Limited.

(June 5, 1911.

Rehearing Denied June 26, 1911.)

(Syllabus by Editorial Staff.)

1. APPEAL AND ERROR ($ 157*)-RIGHT TO APPEAL-EXECUTION OF JUDGMENT.

Though a judgment for plaintiff, in a suit moiety, required defendant to elect between to annul his sale of timber for lesion beyond keeping the timber and paying a supplemental price, or returning the property and receiving back the purchase price, defendant's subsequent removal of timber was not a voluntary execution of the judgment, entailing loss of right to suspensive appeal, under Code Prac. art. 567.

[Ed. Note.-For other cases, see Appeal and Error, Dec. Dig. § 157.*]

2. SALES (§ 113*)-ANNULMENT LESION BE

YOND MOIETY.

Suits to annul sales of personalty for lesion beyond moiety are disfavored, where the contract was not induced by fraud.

[Ed. Note.-For other cases, see Sales, Dec. Dig. § 113.*]

Evidence held insufficient to show lesion beyond moiety in a sale of standing timber. [Ed. Note. For other cases, see Logs and Logging, Dec. Dig. § 3.*]

Appeal from Third Judicial District Court, Parish of Bienville; B. P. Edwards, Judge. Action by Mrs. Nannie Smith against the Huie-Hodge Lumber Company, Limited. From the judgment, defendant appeals. Motion to dismiss appeal overruled, judgment reversed, and suit dismissed.

Barksdale & Barksdale and Barnette & Roberts, for appellant. J. E. Reynolds and Wimberly, Reeves & Dorman, for appellee.

it stands," the situation was different. And the case was remanded for trial.

On Motion to Dismiss.

[1] The judgment of the trial court was as follows:

(1) Annulling the sale for lesion.

(2) Condemning defendant to pay plaintiff $3,420, the value of the timber on the day of sale, with 5 per cent. per annum interest thereon from date of judgment.

(3) Condemning plaintiff to pay defendant $600, with 5 per cent. per annum interest thereon from date of the sale.

(4) Decreeing that "defendant shall have the option of canceling the trade as above

ordered or of paying the amount of the judg

ment of $3,420, less the $600 purchase price," and allowing 15 days within which to elect between keeping the property on paying such supplement of price, or returning the property and receiving back the purchase price.

From that judgment, defendant took a suspensive appeal. Thereafter defendant proceeded to cut and remove the timber.

Plaintiff has moved to dismiss the appeal on the ground that this taking of the timber was a voluntary execution of the judgment, entailing the loss of defendant's right to ap peal. C. P. art. 567.

PROVOSTY, J. This suit came to this court on exception of no cause of action, and is reported in 123 La. 959, 49 South. 655. Plaintiff sold to defendant the merchantable pine timber on 160 acres of land for $600, in December, 1904, and, three years afterwards, in June, 1908, brought this suit to The solution of the question thus raised annul the sale for lesion beyond moiety. On depends upon whether the right which the an exception of no cause of action, defendant defendant exercised, in thus taking the timcontended that the article of the Code al- ber, was or was not derived from the judglowing sales of immovables to be set aside ment. If it was, he executed the judgment. for lesion beyond moiety does not apply If it was not, he did not execute the judg to sales of timber. This court recognized ment, but simply exercised a right which he that such was the case under the Code Na-possessed independently of the judgment. poleon, and would be the case under the article of the Code dissociated with Act No. 188, p. 420, of 1904, but that, in view of the imperative provision of that act, to the effect that "standing timber shall remain immovable, and be subject to all the laws on the subject of immovables even when separated in ownership from the land on which

The right which the Code gives to the vendor to rescind the sale and get back the property is not absolute, but is subject to the option accorded the vendee to keep the property and pay the difference between the price of the sale and the just value of the property. This option is given absolutely and unconditionally to the vendee.

Nothing is to prevent this court from now passing upon the question of lesion, and making a decree appropriate in a case of lesion. The defendant can be condemned as well now as ever to either restore the property, or pay the supplement of price; and the plaintiffs have a full and adequate recourse on the suspensive appeal bond. The sole effect of the said action of defendant was to convert the suit of plaintiff definitively into one for supplement of price. But what difference does that make, when the latter was, anyway, the character of the suit from the beginning, at the option of defendant? The motion to dismiss is overruled.

We can discover no good reason why the | to do, he cannot be said to have acquiesced vendee should not have the right to exercise in the judgment. this option at any time-before or after suit, before or after judgment-without prejudice to his right to litigate the question of lesion vel non, provided, of course, that after judgment he first take a suspensive appeal to suspend all effect of the judgment. In a lesion | suit, the sole and only issue is that of lesion vel non; the question of whether in case of lesion the vendee shall return the property or pay the supplement of price is not an issue in the case. On the latter question, the vendee decides for himself, and the court has nothing to say. By disposing of the property, therefore, the defendant confesses nothing, acquiesces in nothing that the court has decided. He simply exercises a right which he has to retain the property, lesion or no lesion. We do not see why a defendant could not, in his answer, deny that there was lesion, and, at the same time, go on and say that, in case the court should find the contrary, he exercises his option of keeping the property and paying whatever amount the court should find to have been the difference between the price of the sale and the just value of the

property.

In the present case, had the defendant removed the trees and disposed of them before the institution of the suit, he would not thereby have affected in any way the right of the plaintiff to bring the suit, or his own right to defend it. This shows clearly that his action in thus disposing of the trees affects the suit in no way, and hence is not an acquiescence in the judgment in the suit. By way of further illustration, or proof, of defendant's not having acquiesced in the judgment, we may add that he was condemned to do one of two things, and that he did neither. He was condemned to restore the property, or pay the supplement of price; and he did neither. Not having done any of the things he was ordered by the judgment

On the Merits.

It is safe to say that had the price of timber fallen, or remained the same, instead of greatly risen, after the sale sought to be annulled for lesion in this case, this suit would never have been brought.

The questions are as to what quantity of merchantable timber there was upon the land, and as to what was the value of the

timber at the time of the sale.

One of the witnesses for plaintiff testified in his examination in chief as follows:

"Q. Mr. Williams, I believe you have an interest in this case, or in the result of it? "A. Yes, sir; I suppose so. I am not sure of it.

"Q. Please state to the court what your connection with the case is.

"A. Why, I don't know that I have any connection with the case, as I had a contract with Dormon & Reynolds to get a per cent. of all the cases that I worked up.

"Q. That you employed them in, you mean? "A. That I got for them; and I didn't get this case.

"Q. Then you have no interest in this case? "A. I guess they will give me something out of it.

"Q. Have you done any work in the case?
"A. Yes, sir.

have testified to, is that what you refer to?
"Q. The count and measure, etc., that you
"A. Yes, sir.

"Q. What is your interest in this case, Mr. against the purchasers of timber in that loReynolds?

129 LOUISIANA REPORTS

speculation, the attorneys to pay all the ex- | estimate was made by one who was more penses and retain one-half of the profits.

[2] A lesion suit, at best, when unaccompanied, as in the present case, by any suspicion of actual fraud, does not recommend itself to a court of justice. It calls upon the The defendant's experts did not measure court to set aside a contract to which par- the trees, or even count them, but merely esties fully capable of contracting, and not al-timated them by dividing up each one-sixleging any actual error or fraud, have de- teenth section or 40 acres into 5-acre lots, and liberately consented. The law does not coun-going through each lot, and estimating the tenance such a suit when the property sold is a moveable. "The reason," says Troplong, Com. of article 1674, C. N., "is that the price of moveables is less constant than that of immovables.