
    No. 7636
    COURT OF APPEAL PARISH OF ORLEANS.
    JOSEPH ASHER VS. ANTHONY J. ROSSI et al.
   CAGE, J.

O’ hay lóth 1887, the 'laintiff purchased a lot of ground frcnxiag on purgundy Street, in this city, in the Square bounuea by tnat Street, Flood, Daupnine ana Aljary Streets.

Unaer tne pavi..j lavo in force in 1510 the City orders.» Burgundy Street paved. The paving was done by Incitas Egí^n, con-traoior. Tne forced conxiouti^n due by the plaintiif aincu.ited to $70.33 ana the certificate thersior vine iasuea to "Thomas EgC^n, ?#hllney=Cenxral Trust and Savings Bank, AOoi^nee". T..a bank caused the certificate to be recorder in the ..Jo rt gage office, and under the paving laws, the plaintiff owed the amount, and the payment was secured by first lien and privilege on his property. 3y partid! .payments to tne Bank, he reduced the cldim to Col.33. Failing to make further payments the Ban:: brought suit ir. the First City Court of Hew Orleans, under the Ho. 75133 of its docket, and obtained Judgment, for the amount due, by default.

It issued a writ of fieri facias under which tne constable seised tne lot of ground, advertised it for sale, and adjudicated it to t-.e defendant, Rossi, for ti.e sum and price of $50.00.

ITo notice was given .Asher to appoint an appraiser. I'o appraiser was appointed by'tne Ban.-: or the Constable, and the sale was made without any appraisement -whatsoever,

The property is assie'Sd for ..'YCO.OO, Rossi's witness, Donaldson, swears the property is worth $450. U). Asner swears that he refused an offer of $1000.00 and that the value is $1100.00. We believe ¿añar1 a estimate is nearer ths-valuB than'-tnat of Donaldson, and that $900.00 is prolpably aoout what the property is woirth. Under a proper appraisement thereofre, the Constable could not have adjudicated it for lwss taan $600.00. Without any ap-praisement he adjudicated it to Rossi for $50.00.

This result loudly proclaims the wisdom of our law, which strifes with nullity such sales as this, and wnich directs the Courts to declare the nullity at the demand of any party in interest.

Asner brought this suit to have the nullity of the sale pornounced. The defense ls:

"That the plaintiff is estopped from bringing 3aid suit or from questioning in any way defendants title to »aid‘property for the reason, suosequent to the auqusition by the defendant of said property, the relation of landlord and tenant existed between defendant and plaintiff; that plaintiff acquefeced in the adjudication to defendant and recognized defendant as th's owner or the rests, property, upon which the title now questioned,/ and entered into a lease and rental of said property from defendant .

The judgment ir. the Instant court, w_3 ir. favor of plaintiff, Asher., and from it this appeal is prosecuted.

The evidence fails to convimee us that Aaher ever leased the property from Rossi. Ee is an uttely illiterate and simple minded old negro, a pensioner of the Civil y;ar, over Seventy-five years of age. Some one told him that Rossi had purchased his home. Ee understood that it had something to lo -with the paving claim, on which he had been making, partial payments, a.-.i we ire satisfied that all he was attempting to uo was to arrange with Eosbí ,for a continúanos of the indulgence the Ban.: had extended to him. The ^ldence, to our minds, wholly negatives an acquiescence, on his part, m the loss of Rio property, or any understanding of tie aefect in the sale, ana (^n intention, notwithstanding, to condona the defect, and ratify the relative nullity.

The facts do not bear out the defense,

But even^if we had found that, in ignorance of nia le_ai rights, the olu negro had leasea the property fren. Rossi, cur conclusion woula have beer, the same, as -.ve totally disagree with RoSsi on the law.

The textual provision of tr.e law bearing ci. this c ee is found ir. Art. 3441 of tne Civil Code, reading:-

"Those who possess, not for themselves, but in the hams of another, as farmers, depositories and others who acknowledge an owner, cannot acquire the legal possession, because, at the commence - msnt of their possession they had not the intention of possession for themselves, but for another."

The reason, the.justice and tho equity of the provision of the law is so clear and, oovious, that it requires no explanation The same rule runs thorugh all systems of law, and obtains in all the nations of which we have knowledge.

But it is not founded upon the doctrine of estoppel, nor is it founded upon a recognition of, and an acquiescence in, the title of the landlord, depositor etc, etc, beyond the time that the relation of landlord and tenant, depositor and depository, eto.. exists.

To extend it further, would bo to outrage our sense of justice and of right and wrong.

To illustrate our meaning let us take two supposition, oaeas.

A. finds in the secret darawer of an old desk wmoh he bought from a second-hand dealer a Swiss Watoh woth $3000.00, which was the property of the father of B. The father dies and B. as his sole heirs becomes the owner of the watoh. A deposits tha watoh with B, for safe kseping. After the watoh Is returned to A. B. discovers that the watoh belongs to him as heir of his father, and demands 'vs return.

To hoid that he could not recover the watch, because he ha* once been tfce depository thereof, would be to distort the plain text of Artí.3441 C. C. and would do violence to all our instinctive sense of morality and Justice,

But had he made the discovery while holding the watch as deposlxorv. and had he refused to return it. to. JLu a case would have been presented for the application of Art. 3441, ana the reason and philosophy underlying this Article.

Another supposition case.

B. looming for a locatiop for his grocery store, finds a suitaoie property in the possession of A. Ke leans* it for one year and moves in with his stock. Yihile arranging hie shelves, he finds behind a shelf the will of A's father, in which the property was bequeathed to him (B).

If he shodld seek to recover the property by petitory ac tion, during the existence of his years lease. he would be properly met by pleading tne provisions of Art. '_3-i4i.

But if he should wait until the expiration of his lease. should move out ands surrender the ísjs to A. and then bring his petitory action, there is nothing, in good morals, equity, Justice ot the provisions of Arti 3441 which would bar his recovery.

Rossi relies on the case of Joutt vb liortimsr, 29 Ann. 213, to support h-is defense.

A. reading of that authority shows that the «ations of Joust in resisting tne foreclosure of his creditor, !!rs. -ortlmer, were so baadless, gouadless, and immoral, as to excite tne indignation of tne Court, and it held that his offer to lease the premises, after the foreclosure sale, constituted a ratification of the sale.

Perhaps the disgust tha-fc Joust'* conduct excited in the breasts of the Court carried them ratr.er f<ur, Be this 'as it may, ÍM we find 11.atj^aubssquant oases the Court stated tne la.v of ratixi-oat ion, in consonance with our vie.va, and in language deed's iva'. of this C&S3.

In Breaux vs Silvia 3S An. 346, the Supreme Court said:-

"As si the character of the fact or act invoiced as a confirmation or ratification, the Jurisprudence of this State, ¿athered from the following authorities, it to the same effect, namely: that the acta from uhion'the ratification is sou¿nt to be deduced, ...ust evinfis suoh intention clearly and uneqi^ivocally,, none will be inferred where thfitCnct a can be otherwise explained.
( long list of authoritiea)"

'Is have seen that the mere fact of acceptir.j a lease doesTfcot es-top the leasee from asssrtinj title after his possession., as lessee has terminated. We have also seen that it oan operate as a bar, only when the circumstances under 'which the lease was made maxes the act of leasing amount to a ratification and confimmatioa <■ f the lessor's title.

It is axiomatic' that in order to ratify an invalid oontract or title , the person against whom ratification is pleaded must have had lcaowledge of the defect, and must have had the intention to ratify; and it is plain from the evidence that at the time Bfiehi claims that Asher leased, he (Asher) had no Lr-ov/led^e of the fatal flaw in Roesi’e title, c.nd could., therefore have had no intention to ratify it.

Without intent, there can be no crime committed and without intent there can be no oontract confected.

Other decisions of the Supreme Court foftify us in the conclusions vie have rsacned.

In Succession Of Iroxler 46 Ann. 748, the Court said:

"As between the parties to transáehions wh.se legality is fairly debatable, the doctrine of ratification should hot be too rigidly applied."

And ir. Succession of Eascum, 43 Ann. 1345.

"An act fro... which ratification is sought to be deoucea must evince such intention clearly and■ ttnqeui»*-ocaliy. Braeux vs Servie 39 246, 1 South 614. llor will ratification toe inferred where the, act can. toe otfcoisMi*» explained, and in Case of (teuton tfr* "PTMSty against whom the act is opposed must hatfe the benefit of the doubt. See also Suc. at Troxler 46 Ann 738, 15 South South. 153 xxx ^stopples are not faTOrtd. by the law."

In our opinion., both or. the facts and on the law, the Judgment ap-peialed froi„- is correct, and accoádingly it is AFFIRMED.

Defendants to pay costs in both Courts  