Elizabeth Edwards and Husband vs. Edwards. sum stipulated as the price of the sale to her was in fact the same identical sum for which she gave her receipt. The plaintiff prays for damages. Had she offered proof of their amount we should award them to her, for we are strongly impressed that the defendant, Mrs. M. A. Edwards, widow and administratrix of D. L. Edwards, plaintiff's brother, and himself a recipient and holder of property under the same terms and conditions as plaintiff, has acted in bad faith in this proceeding, and in knowing disregard of her sister's rights. It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed, and it is now ordered, adjudged, and decreed that the plaintiff, Elizabeth Edwards, be declared owner in her own right of the land described in her petition in this case, and that the defendants be perpetually enjoined from disturbing her possession thereof; that the judgment of the eighteenth of September, 1875, in the suit No. 1216 on the docket of the district court of Ouachita parish, be annulled and avoided, and that the sale to William Wood by the sheriff, of date fifth of February, 1876, under execution, enjoined in said suit No. 1216, be and the same is annulled and rescinded. It is further ordered and decreed that defendants be condemned in solido to pay the costs of the court below and of this appeal. Rehearing refused. No. 694. THE STATE VS. JAKE THOMAS. An indictment charging an act, with intent to commit murder, which does not aver that the act was willfully and feloniously" done, is fatal. A PPEAL from the Fifth Judicial District Court, parish of East Feliciana. McVea, J. Trial by jury. W. N. Potts, District Attorney, for the State. W. F. Kernan, for defendant. The opinion of the court was delivered by EGAN, J. The defendant was indicted, tried, found guilty, and sentenced to three years imprisonment at hard labor in the penitentiary. After an ineffectual motion in arrest of judgment, he has appealed. The charge, as stated in the indictment, is that he did, with force and arms, 'shoot one George Washington with a dangerous weapon, namely, a shotgun, with intent to commit murder, and to murder aforesaid George Washington, contrary to the form of the statute," etc. The ground set State vs. Thomas. forth in the motion in arrest and the error assigned is that the indictment does not charge that the accused did the acts charged "feloniously, willfully, and with his malice aforethought." At common law this indictment would be bad, and Wharton's American Criminal Law, section 399, lays it down that the use of the word "feloniously" is essential to all indictments for felony, whether common law or statutory. Again, section 372 of the same author says that where a statute refers to a common-law offense by its popular name, and proceeds to impose a penalty on its commission, it is, of course, insufficient to charge the defendant with the commission of the offense in the statutory terms alone, while under the Virginia statute against attempts to commit offenses, the same authority says it is not enough to say "the defendant attempted to maim;" the particulars of the attempt must be set forth. In same section, 293 says "the weight of authority now clearly is that an indictment for attempting to commit an offense must show on its face facts which would make an attempt in point of law, or at least should so individualize the offense as to secure the offender from a second conviction." While it is true that even at common law it was not necessary to charge an attempt to commit a crime or offense with the same particularity and minuteness as the commission of the crime or offense, it was always held necessary in such an indictment as that under consideration, at least whenever done "with felonious intent," and, indeed, it would seem with "malice aforethought." Archbold's Criminal Pleadings, p. 62, side paging 50; same, p. 531, side paging 447; see, also, same, p. 422 and 423, and Chitty's Criminal Law, vol. 3, p. 828. It is, however, claimed that as the law now stands in Louisiana such allegations in an indictment, even for murder itself, are unnecessary, since the statute of 1855 and Revised Statutes of 1870, and the cases of the State vs. Phelps and Brown, 24 An. 494, and State vs. Toney Forney, 24 An. 191, are relied upon in support of this view. Of the former of these cases, it might be sufficient to remark that the indictment which was held good charged expressly that the defendants "did willfully, maliciously, and feloniously kill, slay, and murder," and that Howell, Justice, dissenting, adhered to the doctrine announced in the State vs. Heas, 10 An. 195, which, as well as the uniform current of previous decisions, held as essential in an indictment for murder the words "with malice aforethought" as not being an unnecessary prolixity" in the meaning of the statute. See, to similar effect, Territory vs. Nugent, 1 M. 117 and 175, and State vs. Kennedy, 8 R. 602; 9 An. 211; State vs. Stiles, 5 An.; to the effect that whatever has been determined to be essential averment in an indictment at common law will be deemed necessary here, "and that the power to remedy the evil lies in the legislative branch of the government." 66 State vs. Thomas. In the cases of the State vs. Cook, 20 An. 145, and State vs. Durbin, 20 An. 408 (both for robbery) the court held that the statute of 1855 was not intended to make a radical change in the system of criminal pleadings, but to simplify it and correct some supposed deficiencies, and that the essential, substantial averments in a bill of indictment required by the common law are not dispensed with by the act of 1855, and that the omission of the term "feloniously" in the indictment was held to be fatal. It is singular that the court altogether overlook, in the State vs. Phelps and Brown, 24 An. 494, the important fact that section 1048 of the Revised Statutes of 1870 provides that "it shall be sufficient in an indictment for murder to charge that the defendant 'did feloniously, willfully, and of his malice aforethought, kill and murder the deceased," and in every indictment for manslaughter to charge that the defendant "did feloniously kill and slay the deceased." These provisions are precisely those of the act of 1855, and clearly indicate that it was not the legislative intention to dispense with them, which, as was well said by Judge Ilsley, the organ of the court in State vs. Cook, are precisely the important facts charged in the indictment according to the English form (quoting Archbold's Crim. Plead., 314). It is hardly necessary to add that by the act of 1805, of 1855, and the Revised Statutes of 1870, it was provided that all crimes, offenses, and misdemeanors shall be taken, intended, and construed according to the common law, and that the forms of indictments (divested of unnecessary prolixity) the method of trial, rules of evidence, and all other proceedings in the prosecution of crimes, offenses, and misdemeanors ('changing what ought to be changed') shall be according to the common law, unless otherwise provided." The cases cited in this opinion, and those referred to in them, give judicial interpretation to the words " unnecessary prolixity" and "changing what ought to be changed" under the statute. The essential averments of a good indictment at common law are not classed under either head. The case of the State vs. Toney Forney, 24 An. 191, was an indictment" for shooting with intent to kill and murder while lying in wait," and charged the act to have been done “willfully, feloniously, and maliciously." The extent of the ruling of the court was that the offense was sufficiently charged in that language under the statute, without the use of the words, "with malice aforethought.". None of the words "willfully, feloniously, or maliciously," found in that indictment, appear in the indictment in the present case, which does not, therefore, come within the authority of that case, even admitting it to be consistent with the former rulings of this court. Whether, therefore, it was essential to use in that 29 604 44 883 29 604 48 874 State vs. Thomas. indictment the words "with malice aforethought" or not, we are of opin- 29 604 51 1472 29 604 109 922 No. 764. JOHN A. HUNTER ET AL. Vs. R. T. BUCKNER & BROTHER ET AL. If the real owner of property allows it to stand recorded in the name of another, by a title translative of property, he puts it in the power of that other to create a valid mortgage on it. A PPEAL from the Seventeenth Judicial District Court, parish of Red L. B. Watkins, for plaintiffs and appellants. Land & Taylor and William H. Wise, for defendants. The opinion of the court was delivered by MANNING, C. J. John A. Hunter, Virgil A. Stewart, and William B. Stewart allege that the first two purchased the Wray and Boland plantation, under a bond for title, from W. E. Wamsley, on the fourth of January, 1871, the price being seven thousand five hundred dollars, which bond erroneously recites that $3983 19 were paid in cash, the residue being provided for by the execution of three notes of equal sums, payable respectively on the tenth of November, 1871, and the same day of the two following years, and that this sum, thus represented to have been paid cash, was not in fact thus paid, but as follows: On the same day that plaintiffs executed the notes to Wamsley, a conveyance of the Loggy Bayou plantation was made to him by William B. Stewart, Alice M. Stewart, and Martha S. Caldwell, for the expressed consideration of $3519 08 cash, and that this sum was not in fact paid in cash, but in reality was a part of the slightly larger sum mentioned as cash paid in the bond for title of the Wray and Boland plantation. The petitioners further allege that in August, 1873, Wamsley instituted suit upon the three notes above mentioned, praying for judgment for their aggregate amount, and for the enforcement of his vendor's privilege, and a judgment with a restraining condition as to execution was rendered against them, as will appear by that case, now before us on appeal. Hunter vs. Buckner & Brother. But meanwhile, viz., on third of April, 1873, Wamsley had executed a mortgage upon the Loggy Bayou tract to R. T. Buckner & Brother to secure the payment of his debt to them, amounting to $2197 29, and they had obtained executory process thereon, and that tract was advertised for sale on February 17, 1877. Besides, Wamsley had never paid for the Wray and Boland tract, and his vendors foreclosed their mortgage upon it, and it was sold on the second of December, 1876, for a sum insufficient to pay their mortgage, and Hunter and Virgil Stewart were consequently evicted. The plaintiffs allege that Wamsley's failure to lift this mortgage is a breach of the condition of his bond, and operates a revocation of the sale of the Wray and Boland tract to Hunter and Virgil Stewart, and entitles the plaintiffs to the payment of the penalty of the bond, and that the revocation and resolution of the sale of the Wray and Boland tract entitles them to recover back the Loggy Bayou tract free from every incumbrance that Wamsley may have placed upon it, and particularly from the Buckner mortgage. They then pray the annulment of that mortgage, and its erasure from the mortgage records, and for the revocation of the sale of the Wray and Boland tract through the enforcement of the resolutory condition, and a decree declaring void any sale that may take place under the Buckner mortgage. An exception was filed by the Buckners. First That Hunter and Virgil Stewart have no interest in the suit to annul the sale of the Loggy Bayou tract, but that such suit should be by all the vendors of that tract, and not by one alone. Second-That no legal cause of action has been set forth in the petition against the Buckners, inasmuch as they are third parties, who were ignorant of, and are unaffected by, any latent equities between others. This exception was referred to the merits, and there does not appear to have been any other objection to either the misjoinder or nonjoinder of parties. The Buckners answered by a general denial, with the allegation that they are holders of a special mortgage upon the Loggy Bayou tract, acquired by them in good faith and in ignorance of any secret bargains between their mortgageor, Wamsley, and his vendors or others, and believing, and having a right to believe, that Wamsley was the legal owner of the mortgaged premises. Wamsley's administrator, answering for the succession, pleaded the judgment in the other suit upon the notes as res adjudicata. There was judgment for the defendants. The plaintiffs' documentary evidence included the bond recited in the petition, and the deed to Wamsley of the Loggy Bayou tract. The first is an instrument by which Wamsley binds himself to Hunter and Virgil |