
    (40 South. 474.)
    No. 15,472.
    CROCHET et al. v. McCAMANT et al.
    (April 10, 1905.
    On Rehearings, May 22, 1905,
    Dec. 4, 1905.
    Jan. 2, 1906.)
    1. Public Lands—Homestead — Community Property.
    The acquisition of the land by the homesteader under the federal homestead law dates from the entry. The occupying and cultivating of the land for five years, and the making of the final proofs, are merely conditions imposed upon the title; and the accomplishment of these conditions has a retroactive effect to the date of the entry. Consequently the homestead becomes the joint property of the husband and the wife, if the community of acquets and gains existed between them at the time of the entry, even though the proofs were made, and the certificate and the patent issued, only after the dissolution of the community by the death of the wife.
    On Rehearing.
    2. Stipulations.
    Estoppel was pleaded, and evidence admitted in its support. An agreement of counsel gave rise to issues on appeal.
    3. Same.
    Through error originally, greater scope was given by junior counsel to the agreement than there was any necessity, in order npt to appear to have taken advantage.
    4. Same.
    On the application for rehearing one of the counsel admitted that he had stated to plaintiff’s and appellee’s counsel, when applying to them for a waiver pro forma, in so far as they, as attorneys of one of a number of defendants and appellees were concerned, of the petition and citation of appeal, “that the demand of plaintiffs had been dismissed against their client, and that he would make no further claim in his brief against them.”
    5. Dismissal and Nonsuit.
    There had been motion made by plaintiffs for a discontinuance in the district court as relates to one of the defendants. Greater scope was given to this discontinuance in the Supreme Court than required by it (the discontinuance of itself), which scope binds parties.
    6. Appeal — Hearing and Rehearing — Rights Acquired Since Judgment.
    Issues not heretofore touched upon, and not included within the prior action of the court, considered, and after considering as relates to the extent of warrantee’s claim the cause is remanded to admit evidence of asserted rights acquired since judgment was rendered, and to consider and pass upon issues involved between warrantor and warrantee. ,
    (Syllabus by the Court.)
    
      Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Edmund Dennis Miller, Judge.
    Action by Emerand Crochet and others against George G. McCamant and others. From a judgment for defendants, plaintiffs appeal.
    Reversed.
    Fournet & Fournet, for appellants. McCoy & Moss, for appellee McCamant. Pujo & Moss, for appellees Williams and Cooper. Gorham & Gorham, for appellee Bertrand.
   PROVOSTY, J.

Under the federal homestead law, any head of a family, or person 21 years old, who is a citizen of the United States, or has filed his declaration of intention to become such, as required by the naturalization laws, may acquire 150 acres, or less, of public land without purchasing the land, but by simply paying certain fees and fulfilling certain conditions. First, he must enter the land, as the expression is; that is to say, he must apply at the local public land office for permission to enter the land, pay $5 if he enters 80 acres or less, and $10 if he enters more, and make and file an affidavit that he possesses the qualifications mentioned above, and that he makes the entry for his own exclusive use and benefit, and for the purpose of actual settlement and cultivation. He must then reside upon and cultivate the land for the five years immediately following, without changing his residence or abandoning the land for more than six months' at any time. At the end of the five years, and within two years thereafter, he may, upon taking an oath of allegiance to the government of the United States, and making affidavit that he has not alienated any part of the land, and proving by two credible witnesses his residence upon and cultivation of the land for the five years, obtain a certificate, and, finally, on the strength of the certificate, obtain a patent.

Taking advantage of this law, Magloire Crochet entered 152 acres, and lived upon and cultivated the same for the five years following. He did this in the lifetime of his wife, between whom and himself the community of acquets and gains existed. After the death of his wife he made the final proofs, as they are called; that is to say, he took the oath of allegiance, made the affidavit of nonalienation, and made the required proof, by two credible witnesses, of residence and occupation, and paid the fees of the officers of the land office, amounting to $8.

He then sold the property as belonging in its entirety to himself.

His children bring the present suit against his vendees, claiming that, the land having been acquired during the existence of the community of acquets and gains, it fell into the community, ‘and that they, as heirs of their mother, are owners of an undivided half of the same. They rely upon article 2102, Civ. Code, reading as follows:

“This partnership or community consists of the profits of all the effects of which the husband has the administration and enjoyment, either of right or in fact, of the produce of the reciprocal industry and labor of both husband and wife, and of the estates which they may acquire during the marriage, either by donations made jointly to them both, or by purchase, or in any other similar way, even although the purchase be only in the name of one of the two and not of both, because in that case the period of time when the purchase is made is alone attended to, and not the person who made the purchase.”

Defendants contend that the land was acquired after the dissolution of the community by the death of the wife, and that consequently it did not fall into the community; that the acquisition of the land by the homesteader dates from the making of the final proofs, or, rather, from the issuance of the certificate of their having been made; and that these final proofs were made after the death of the wife.

Naturally, on the question thus raised, the governing law is the homestead statute itself. Our laws can have sway only in the silence of the homestead statute, or from the point where the homestead statute ceases to operate. Defendants do not impugn the correctness of the decisions heretofore rendered by this court, to the effect that the property acquired under the federal homestead law during the existence of the community falls into the community. Brown v. Fry, 52 La. Ann. 58, 26 South. 748.

In support of their contention defendants say that, until the certificate has issued, the 'homesteader cannot dispose of any part of the land by sale, mortgage, or lease, and it is not liable for his debts, and in case he dies no interest in it remains in his estate; nnd they argue that until then he cannot be said to be owner; They invoke the decision of this court in the case of Richard v. Moore, 110 La. 435, 34 South. 593, where it was held that in case the homesteader dies before the ■expiration of the five years, and his widow continues to reside upon and cultivate the land for the remainder of the time, and makes the final proofs, the title vests exclusively in her, and not in the community of acquets and gains which existed between her and her husband.

That argument is only specious, and the decision is not in point. The government, in offering to the homesteader the opportunity to acquire the property, is- at liberty to impose such conditions as it chooses, and one -of the conditions expressly imposed is that in case he dies before the making of the final proofs whatever rights exist under the •entry and the occupation and the cultivation shall pass to his widow, and in her default to his heirs, and only in default of such heirs to his devisees. The homesteader takes the land subject to that express condition. The decision in the ease of Richard v. Moore enforced that provision of the statute, and both it and the statute it enforces are totally inapplicable to a case like the present one, where the homesteader has not died. It is not true that the homesteader has no interest in the land, since, in default of widow or heirs, the statute expressly x>ermits him to devise an interest in it. He could not devise an interest in the land if he had none. It is not true that he may not mortgage. A. & E. E. of L. vol. 27, p. 412. Nor is it true he may not lease any part which he himself is not occupying and cultivating, or sell his interest such as it is.

Section 2297, Rev. St. U. S. [U. S. Comp. St. 1901, p. 1398], provides that under certain contingencies the land “shall revert to the government.” Now it is not possible for the land to “revert to the government” unless it has passed out of the government and to the homesteader. To that effect is an opinion given by Attorney General McVeagh to the Secretary of War as follows:

“It is true a certificate of entry is not then given, the certificate being, under section 2291, Rev. St. U. S. [U. S. Comp. St. 1901, p. 1390], withheld until the expiration of five years from the date of such entry, at the end of which period, or within two years thereafter, upon proof of settlement and cultivation during that period, and payment of the commissions remaining to he paid, it is issued; hut upon entry the right in favor of the settler would seem to attach to the land, which is liable to be defeated' only by failure on his part to comply with the .requirements of the homestead law in regard to settlement and cultivation. This right amounts to an equitable interest in the land, subject to the future performance by the settler of certain conditions (in the event of which he becomes invested with full and complete ownership), and, until forfeited by failure to perform the condition, it must, I think, prevail, not only against individuals, but against the government. That, in contempla-' tion of the homestead law, the settler acquires by his entry an immediate interest in the land, which, for the time at least, thereby becomes severed from the public domain, appears from the language of section 2297, Rev. St. U. S., wherein it is provided that in certain contingencies ‘the land so entered shall revert to the government.’ 1 Copp. Pub. Land Laws 1882, p. 388.
“Section 2288, Rev. St. U. S. [U. S. Oomp. St. 1901, p. 1385], provides that before the expiration of the five years the homesteader shall have the right to sell any portion of the homestead for church, cemetery, or school purposes, or for a right of way to a railroad. The statute provides that such sale ‘shall in no way vitiate the right to complete and perfect the title.’ None but an owner can sell. Hence the allowance or recognition of such a right is entirely inconsistent with a negation of the ownership of the homesteader; and none but one who has a title of some kind can ‘complete and perfect his title.’ ”

Under the statute, therefore, there comes into existence, in favor of the homesteader, as an effect of the entry, a certain right which, in the language of Atty. Gen. Mc-Yeagh, “attaches to the land”; that is to say, there is established between the homesteader and the land a direct relation, by virtue of which he is invested with the moral power of holding it as against the whole world, the government included, and of appropriating the fruits, and by virtue of which he is further invested with the absolute right to a patent upon fulfilling certain conditions entirely potestative on his part—a right defeasible only in the event that before the fulfillment of the conditions he dies, leaving a widow or heirs. Now, if this relation between the homesteader and the land be not an ownership, what is it? If not an ownership, how is it to be classed in our system of land tenure? Evidently it is what is described by our Code as an imperfect ownership, by which is meant an ownership which does not invest the titulary with the right to use, enjoy, and dispose of the property in an unlimited manner. It is furthermore a conditional ownership. But an imperfect conditional ownership, under our Code, is an ownership; and under our Code the accomplishment of a condition has a retroactive effect to. the moment of the birth of the conditional right, whereby matters are placed in the situation in which they would have been, if, from the beginning, the right had been absolute.

The articles of our Code on the subject of imperfect ownerships, and of conditional obligations or contracts or rights, are the following:

“Article 490. Ownership is divided into perfect and imperfect.
“Ownership is perfect when it is perpetual, and when the thing is unincumbered with any real right towards any other person than the owner.
“On the contrary, ownership is imperfect, when it is to terminate at a certain time or on a condition; or if the thing, which is the object of it being an immovable, is charged with any real right towards a third person; as a usufruct, use or servitude.”
“Article 492. -Imperfect ownership only gives the right of enjoying and disposing of the property, when it can be done without injuring the rights of others; that is, of those who may have real or other rights to exercise upon the same property.”
“Art. 2021. Conditional obligations are such as are made to depend on an uncertain event. If the obligation is not to take effect until the event happen, it is a suspensive condition; if the obligation takes effect immediately, but is liable to be defeated when the event happens,, it is then a resolutory condition.
“Art. 2022. Conditions, whether suspensive or resolutory, are either casual, potestative or mixed.
“Art. 2023. The casual condition is that which depends on chance, and in no way in the power either of the creditor or of the debtor.
“Art. 2024. The potestative condition is that which makes the execution of. the agreement depend on an event, which it is in the power of the one or the other of the contracting parties to bring about or to hinder.
“Art. 2025. A mixed condition is one that depends at the same time on the will of one of the parties and on the will of a third person, or on the will of one of the parties and. also on a casual event.”
“Art. 2028. The contract of which the condition forms a part is, like all others, complete-by the assent of the parties; the obligee has a right of which the obligor cannot deprive him; its exercise is only suspended, or may be defeated, according to the nature of the conditions.”
“Art. 2041. The condition being complied with, has a retrospective effect to the day that the engagement was contracted; if the creditor dies before the accomplishment of the condition,, his rights devolve on his heirs.”

Examples of such imperfect and conditional and defeasible ownerships readily suggest themselves. The ownership subject to usufruct, or that is burdened with servitude, or subject to the right of redemption, are instances of imperfect ownership; and the following are instances of conditional ownerships : Where the purchaser at a sheriff’s-sale does not pay the price, the situation, so far as the title to the property is concerned, is just as if he had not bought at all, and yet, if he pays the price, his ownership dates from the adjudication. And so with the heir who purchases at the succession sale, and avails himself of the privilege extended to him, by art 1343 of the Code, of withholding the price until a partition of the estate can be made. His title is conditional upon payment of the price, and, if he fails to pay, his title fails, and all the incumbrances he may have put upon the property fail with it Bank v. David, 49 La. Ann. 136, 21 South. 174. A still more striking example of an infirm title is that of a purchaser at a sale, made under Act 82, p. 104, of 1884, of land acquired by the state at tax sales. If he fails to pay the taxes which accrued on the property subsequent to December31,1879, he virtually has no title at all ((Remick v. Lang, 47 La. Ann. 914, 17 South. 461); but he may pay these taxes at any time, and therebyperfecthis title (Muller v. Mazerat, 109 La. 116, 83 South. 104). In this last instance the purchaser has the mere shell of a title without the substance. An example of his having all the substance of the title, and not its shell, would be if he paid the price and went into possession before the act had been passed. It goes without saying that in a sale by private contract the parties may stipulate such conditions and modifications as they please, so long as they do not offend good morals or public policy, or seek to create tenures reprobated by our laws. For instance, they might agree that the sale should be subject to the same conditions as are imposed by the homestead law upon the homesteader. In all of the foregoing cases the property must be considered to have been acquired at the time that the imperfect conditional title, such as it was, became vested in the purchaser subject only to the conditions imposed upon the title, and these conditions, when accomplished, have, in the language of article 2041 of the Civil Code, “a retroactive effect to the day that the engagement was contracted”; that is to say, to the day that the conditional right had its birth.

Treating of the effects of conditions, Marcado, in his Commentary on article 1179 of the Code Napoleon, says:

“The conditional obligation, and, for the matter of that, every conditional right, whatever may be its nature, is not a right which will exist, or will not exist (in the future), accordingly as such an eventuality may or may not come to pass. It is a right which, under tha contemplated condition, exists, or does not exist, at the present time. The right has not, and will never have, any existence, if the condition is not accomplished. It has, on the contrary an actual existence, if the condition is subsequently accomplished. The formula of the conditional obligation is not, T will owe you, if, * * * ’ but it is, T owe you, if * * =s j The obligation which would come under the formula, T will owe you, if, * * * ’ would be not alone conditional, but also with a term. The accomplishment of the condition has, then, a retroactive effect to the moment itself of the contract.”
“After the happening of the condition the situation is the same as if the obligation had come into existence at the moment of the contract and had been at once perfect.” Ban-dry-Lacantinerie, Obi. vol. 2, p. 35, No. 809.
“The right resulting from the engagement is considered as having vested in the contractee from the moment of the contract.” Pothier, Obl. No. 220, p. 112.

A claim due only conditionally belongs to the community, even though the condition is not accomplished until after the dissolution of the community. Duranton, vol. 14, No. 109; Toullier, vol. 12, No. 109; Troplong, vol. 1, No. 365; Rodiere et Pont, vol. 1, No. 366.

Property bought before the marriage under a suspensive condition by one of the spouses remains his or her separate property, though the condition is realized after the marriage. Pothier, Communauté, n. 157; Duranton, vol. 14, n. 171; Rodiere et Pont, vol. 1, n. 518; Lâurent, vol. 21, n. 290; Baudry-Lacantinerie, vol. 53. No. 54.

The same effect of retroactivity attends the accomplishment of the suspensive condition as of the resolutory. Article 2041 makes no distinction in that regard. “L’art. 1179 étant concu dans les termes les plus généraux, le principe de la rétroactivité s’applique dans le systeme de notre code civil que la condition soit suspensive ou qu’elle soit résolutoire.” Bandry-Laeantinerie, Des Obl. vol. 2, p. 39, No. 810. But as a matter of fact the conditions attached by the homestead law to the ownership acquired by the homesteader by his entry are resolutory, and not suspensive. The government does not say, “The land will go from me to you, if you do these things,” but it says, “the land shall revert to me, if,” etc.

If the ownership, such as it is, were intended to be suspended until the accomplishment of the conditions, the homesteader would not be permitted to exercise the right of occupying and enjoying the property, and making the fruits his own and, under limitations, to dispose of it.

In the case of U. S. v. Ball (O. 0.) 31 Fed. 667. the court said:

“In this matter the United States is to be regarded as any other vendor of real property, and the settler, prior to the issue of the certificate, as a vendee of such property, in possession under an uncompleted contract of purchase.”
In the case of United States v. Turner (O. O.) Fed. 228, the court said:
“It is clear to me that he has the right to giant any part of his possession and equitable interest to any other persons for their use and enjoyment, so long. as they do no damage to the freehold or contingent reversionary interest of the government.”

Under the interpretation contended for by defendant the homesteader would have acquired nothing by the entry, nothing by his five years of work. The fruits of the labor and industry of the spouses for five long and arduous years would not have fallen into the community; but thereafter, suddenly, the making of certain proofs—the fulfillment of a formality, the work of a brief hour— would endow the husband alone with what it had taken all this time and labor to earn. This would accord too little with the equities of the situation. The five years’ occupation and cultivation of the land is in the nature of a price paid for it. The settler pays no money, but he pays by means of his five years’ services bestowed upon the improve-’ ment of the land. The well-known object which the government has in view is the opening up and settlement of the waste places of the country. That is what it gets in return for the conveyance of the land. Now, during these five years the wife and partner in community was a colaborer by the side of the homesteader, and she, by her coequal services, earned one-half of the property. This five years’ residence is the consideration which" the government exacts for the land. The final proofs are but matter of form—of essential form, it is true, still of mere form—the passing of the act of sale, as it were, after the contract itself has come into existence and had full operation.

As stated by Chief Justice Marshall in Delassus v. U. S., 9 Pet. 117-133, 9 L. Ed. 71:

“No principle is better settled in this country than that an inchoate title to lands is property.”

Our conclusion is that from the moment of the entry Magloire Crochet had a conditional ownership of the land, and that the accomplishment of the conditions under which he held it retroacted to the date of the entry, and that consequently the land was acquired during, and fell into, the community.

Magloire Crochet suffered more than seven years to elapse between his entry and the final proofs, and it is argued that he thereby forfeited his rights under the entry, and, as a consequence, acquired the land solely by the effect of the patent; but, plainly, if he acquired the land at all, it was under the homestead law, and as an effect of the entry and the five years’^occupation and cultivation.

The defendants are Jos. Bertrand for 50 acres of the land, and Geo. G. McCamant for the remainder.

McCamant has called his vendors, Isaac D. L. Williams and John H. Cooper, in warranty, and has prayed that in ease he is evicted he be given judgment against his said vendors for the price he paid them for the property, $3,360, together with interest thereon at the rate of 6 per cent, from February 23, 1901, the date of his acquisition of the property.

Jos. Bertrand calls his vendor in warranty, and urges many defenses, but presumably bas abandoned tbe case, as he has made no appearance in this court.

MeCamant, not having asked that the sale by which he acquired the property should be dissolved, is entitled to recover from his warrantors only for the part from which he is evicted; that is to say, one-half. He is entitled to recover interest only in the event he is ever called upon to restore the fruits and revenues.

The suit has been dismissed as to the interest of Augustin Crochet in the 50 acres held by Jos. Bertrand.

It is therefore ordered, adjudged, and decreed that the plaintiffs Emerand, Emile, Joachim, Augustin and Odressy Crochet, and Dyskda Crochet, wife of Jean Simon, have judgment against Geo. MeCamant for the one undivided half of the following described property situated in the parish of Calcasieu, to wit: Fractional S. W. % and the fractional S. % of the N. W. % of section 14, township 8 S., range 3 W., except 40 acres of the north part of said S. % of the N. W. % of said section 14, containing 112 acres, more or less, and be put in possession thereof as owners.

.It is further ordered, adjudged, and decreed that the same above-named plaintiffs, except Augustin Crochet, have judgment against Joseph Bertrand for six-sevenths of the undivided one-half of the following described property situated in the parish of Calcasieu, to wit: Fifty arpents of land in the S. V2 of the N. W. fractional quarter of section 14, township 8 S., range 3 W., and be put in possession thereof as owners.

It is further ordered, adjudged, and decreed that Geo. MeCamant have judgment against Isaac D. L. Williams and John M. Cooper jointly, as warrantors, for the sum of $1,680, with right reserved to the said Geo. MeCamant to claim interest on said sum from the date of his purchase, in case he is ever required to pay rents and revenues for the land whereof he is evicted by the present judgment.

It is further ordered, adjudged, and decreed that the call in warranty and the re-conventional demand of Jos. Bertrand herein be dismissed as in case of nonsuit.

It is further ordered, adjudged, and decreed that the defendant Geo. MeCamant pay one-half of the costs of this suit, and have judgment against his sai'd warrantors jointly for like amount.

It is further ordered, adjudged, and decreed that Jos. Bertrand pay one-half of the costs of this suit, with reserve of right to claim reimbursement from his warrantors.

BREAUX, C. J., concurs in the decree.

On Application for Rehearing.

PRO YO STY, J.

The defendant Joe Bertrand, not having made any appearance on the appeal, the court assumed that he had abandoned the case; but the reason of his nonappearance was, it seems, that the appeal, on the contrary, had been abandoned as to him. This is now made to appear by affidavit of plaintiffs’ and appellants’ counsel. Therefore a rehearing is granted as to the demand against Joseph Bertrand, and, unless good reason is hereafter shown to the contrary, judgment will, on the new submission of the case, be accordingly rendered in his favor, affirming as to him the judgment appealed from.

A rehearing is also granted to the defendant MeCamant on his demand for a judgment against I. D. L. Williams for the full amount for which judgment is given him in warranty.

The judgment handed down remains, in all other respects, unaffected.

Statement.

BREAUX, C. J.

There is a disagreement between counsel about an agreement entered into between them in this cause.

Defendants obtained.a judgment in the district court, from which plaintiffs prosecuted an appeal to this court, and here the judgment of the district court was reversed, and a judgment rendered in favor of plaintiffs, decreeing that they (the plaintiffs) are owners of the land they claimed.

Just prior to taking the appeal in the district court by petition and citation, after the court had adjourned, the junior counsel for plaintiffs called upon the senior counsel for defendants and appellees (Mr. Gorham), and requested him to waive service of notice of appeal, which, after some conversation between them, senior counsel consented to do, and did waive service of citation of appeal.

The case was heard by this court on appeal, and judgment rendered as before mentioned.

In the original judgment this court said in substance that defendant Bertrand, owner of 50 acres of the land claimed, called his vendor in warranty and urged many defenses, but that personally he had abandoned his case, as he had not appeared here to sustain his defense as one of the appellees.

The judgment appealed from was reversed, and he was condemned, together with his codefendant, to deliver the land claimed to plaintiffs.

The- court dismissed Bertrand’s call in warranty and his reconventional demand.

An application was made for rehearing by counsel for defendant Bertrand, and in their petition for a rehearing senior counsel Gorham for this defendant averred under oath that he was misled by junior counsel for plaintiffs, who stated to him that:

“They had entirely abandoned any claim on the part of plaintiffs as against said defendant Joseph Bertrand, Jr., during the trial of said ease, and after judgment was rendered on the 3d day of February, 1904, dismissed plaintiffs’ demand.”
That “no appeal was taken by plaintiffs from said judgment in open court, but 10 months thereafter plaintiffs presented a petition for appeal. Junior counsel for plaintiffs came to the office of senior counsel for defendant Bertrand, and said, in substance, that he had abandoned the appeal as to Bertrand; that there would be no demand urged against him on appeal, as brief would show, a copy of which affiant says was promised.”

The appearer stated that he had a valid defense which he, in consequence of assurance before referred to, did not urge. He never saw plaintiffs’ brief, and other averments about to the same tenor are set forth.

The junior counsel of the law firm employed by plaintiffs, after the first opinion had been handed down, on his oath declared that he gave “defendant’s counsel to understand that, inasmuch as the demand for plaintiffs had been dismissed against their client” Joseph Bertrand, Jr. (he, junior counsel), affiant “would make no further claim in his brief against their client, and that he would send them a copy of plaintiffs’ brief”; that Bertrand’s attorneys replied that they would not prepare a brief, as there was no necessity, and affiant assented.

Affiant, the junior counsel for plaintiff, says that he wrote the first part of plaintiffs’ brief from his recollection of the facts, and that he'did state in said brief that:

“During the progress of the suit the claim against Joseph Bertrand, Jr., was abandoned; that G. A. Fournet, the senior member of the firm of Fournet & Fournet, who conducted the case in its entirety before the district court, wrote plaintiffs’ brief in this case, except the first two or three pages thereof, written by affiant as above stated.”

Affiant further declares that he mailed to the address of Gorham & Gorham, attorneys at law, a copy of plaintiffs’ brief.

These agreements were considered by the court on the application for a rehearing. The court held as to Joseph Bertrand as follows:

“But the reason of his nonappearance was, it seems, that the appeal, on the contrary, had been abandoned as to him. This is now made to appear by affidavit of plaintiffs’ and appellants’ counsel. Therefore a rehearing is granted as to the demand against Joseph Bertrand, unless good reason is shown hereafter to the contrary. Judgment will, on the new hearing of the case, be accordingly rendered in his favor, affirming as to him the judgment appealed from.”

Plaintiffs and appellants, through counsel, urge in their brief:

“It is true the suit was dismissed against Joseph Bertrand, Jr., only in so far as the interest of Augustin Crochet, one of the plaintiffs, is concerned. This truth is admitted by his ■counsel. Now, as to the other plaintiffs, the •case stands against Joseph Bertrand, Jr., as well as against his codefendants, in the same position it stood when originally brought.”

Defendant and appellant Bertrand had other defenses than those pleaded by his co-•defendants. He pleaded estoppel in the district court; that the heirs of one of the ancestors in title had consented to the sale of the property which he afterward bought from Ozan Crochet, who had bought from Augustin Crochet, who, in turn, bought from plaintiffs’ father; that the community between plaintiffs’ father and their late mother was in debt; and that, with the consent of these heirs, the property was sold to pay these debts. Evidence was introduced to prove these grounds of defense.

Judgment.

Differences which sometimes arise between •counsel in regard to the scope and extent of their agreement give rise to delicate issues, frequently embarrassing to decide.

It appears to us that each counsel was in •good faith, and that no attempt was made to take undue advantage.

About 10 months had elapsed since the •case had been decided in the district court, .and, when the matter was called up at the time that the appeal was taken, one of the ■counsel for defendant Bertrand, Jr., was under the impression that the case had been ■dismissed in its entirety. The other counsel •did not controvert that assertion made at the time of the waiver of copy of petition and ■citation of appeal, and the consequence was that, when the tables were turned and judgment rendered against defendants, the agreement of counsel was recalled. The junior counsel, anxious, doubtless, not to be placed in the attitude of having sought the least undue advantage, admitted more than he ■should have perhaps.

Upon further investigation, possibly, for the first time after the appeal, it became evident to him that the dismissal related to Joseph Bertrand, Jr., and only to the extent that Augustin Crochet, one of the plaintiffs, who was vendor to the one from whom Bertrand bought, and that the agreement should have been limited to a dismissal as to Augustin Crochet’s title, under which Bertrand held as owner for having bought it from Augustin Crochet’s vendee.

The affidavit of junior counsel does appear to include all interests of Bertrand as a defendant. It is not limited to Augustin Crochet’s title. The decision handed down on the application for a rehearing, now final, has brought the issues within narrow limits. The onus of proof, under the terms of the decision, was with plaintiffs. Upon examination of the questions presented we do not think that this onus has been met sufficiently to justify us in setting aside that which has already substantially been held by this court in the opinion granting a rehearing, and that it only remains for us to affirm the judgment.

It is accordingly ordered, adjudged, and decreed that, as to Joseph Bertrand, Jr., the judgment of the district court is affirmed at appellees’ costs, and that the former judgments handed down in this case, in which there was a rehearing, be accordingly amended.

On Rehearing as to Geo. G. McCamant.

The rehearing as relates to Joseph Bertrand, heretofore passed upon and decided, did not trench upon MeCamant’s application for a rehearing. It did not relate to it at all, and had no reference to it. Therefore the McCamant application is untouched.

Touching McCamant, the rehearing was granted on his demand for judgment against Williams for the full amount for which judgment is given in warranty. That branch of the case is still before us for decision.

Williams and Cooper, warrantors, allege that the rehearing was granted to the defendant McCamant, and that McCamant asked for a judgment against Williams for the sum of $1,680.

These parties, Williams and -Cooper, say that no judgment should be rendered against them, and ask that this cause be dismissed, or remanded to the district court for further proof.

We must decline to dismiss the cause. It is different as to the prayer to remand the cause.

It appears, by copy of a deed annexed to their application here, that on the 27th day of June, 1905, after the judgment in this cause had been handed down, Williams and Cooper bought from Crochet (plaintiff) the property which the court decided belonged to Crochet.

Their contention since that purchase is that its effect has been to vest the title in George G. McCamant, their warrantee, and that in consequence McCamant is without right to a judgment against them for the purchase price; that their purchase enures to their warrantee’s benefit.

We shall not decide any issues at this time, and rest content, after setting aside our judgment in so far only as relates to McCamant’s claim, and after having ordered the case to be remanded to the lower court for the introduction in evidence of the deed of Crochet before referred to, and for the admission of any further testimony regarding Williams’ liability as warrantor vel non, to go no further.

In other words, the judgment of this court will be set aside as relates to this one issue, i. e., the one before mentioned, to enable Williams and Cooper to be heard on the lines before stated.

This order remanding the cause is given without prejudice to the rights of parties, acquired under the judgment rendered in this case, and in regard to which the rehearing has been refused, save and except as relates to the issue before mentioned, and to-that one to which we will refer in a moment.

Touching the asserted rights of George G. McCamant, the following are his grounds for a rehearing, which have not heretofore been-passed upon (it was not specially brought to the court’s attention), viz.: The original opinion allows his claim, as warranteeagainst his vendors, Williams and Cooper jointly, for the sum of $1,680; same being one-half of the purchase price paid by Mc-Camant to said Williams and Cooper.

McCamant’s contention is that Williams separately and alone owes him $1,680, and that Cooper and Williams of said amount owe-him $840.

Sales were made as alleged by Crochet to Williams, by Williams to Cooper, and by Cooper and Williams to McCamant.

These sales .contain the warranty clause.

Since the case has to be remanded to the lower court to the extent before mentioned,, we remand this issue, also, to be decided at the same time with the question above mentioned.

It is therefore ordered, adjudged, and decreed that the judgment to the extent before-mentioned be recalled, reversed, and annulled.

We remand the cause only to the extent,, before mentioned, after the case shall have-been reinstated the court shall admit the evidence before mentioned, and decide the issues stated, both as relates to the warranty clause and to the amount, if any, to-which McCamant (warrantee) is entitled.

In order to avoid possible error in matter-of title, the parties to the litigation shall have the right, during six judicial days, to-file any application they may choose for rehearing, to the extent only that the causéis remanded. In all other respects the causéis finally disposed of, and rehearing is refused.  