
    No. 1243.
    Lizzie E. Walker et al. vs. S. L. Barrow et al.
    On Motion to dismiss.
    The Supremo Court has jurisdiction over a partition suit in which the alleged value of the property sought to be partitioned and the amount of rents claimed by the plaintiff, together, exceed $2000.
    On tiib Mb kits.
    The rule that a deed conveying land to several persons by name and not stating the interest devised to each, necessarily conveys to them a joint title, does not obtain where the proof shows the proportion contributed by each, in the formation of the sum paid as the purchase price; such contribution fixes the proportion of the ownership.
    'In cases of partition in real estate, not susceptible of a convenient division in kind, where improvements have been placed on the land by one of the joint owners, the proper way of ascertaining the relative value oí both, is to have them separately appraised, before the sale, to operate a rentilation of the proceeds, which aie then distributed ratably.
    APPEAL from the Fourth District Court, for the Parish of Jackson. Wear, J.
    
    
      Graham <& Holstead for Plaintiff and Appellant:
    A deed conveying land to'several persons by name and not stating the interest devised to each, necessarily conveys to them a joint title. Bouvier’s Law Dictionary, p. 678, Tit. Joint.
    The validity and effect of contracts aro to be determined by the law of the place where made. O. J?., Art. 10; C. 1\, Art. 13; 12 An. 489, 199,24; An. 363; 10 An. 415.
    The usufructuary is not entitled to recover taxes paid on property, subject to the usufruct, or for improvements made thereon. O. 0 578 and 594.
    One co-proprietor can not erect improvements on the common property, without the consent of the other joint owners, and compel the latter to pay therefor. 10 An. 265; 26 An. 255; 23 An. 502.
    The husband of Mrs. Barrow, who made the improvements, being without title, ■could not recover for the improvements, and his wife can not recover a community debt. C. O. 503, 3452, 3453; C. P., Art. 107; 9 An. 12.
    
      
      Fred. W. Price for Defendant and Appellee:
    On Motion to Dismiss.
    1. The appellate jurisdiction of the Supreme Court of Louisiana, in civil eases* extends only to cases in which the matter in dispute or the funds to be distributed, whatever the amount claimed, shall exceed two thousand dollars exclusive of interest, and to suits for divorce, etc. Const. 1879, Art. 81.
    2. The fund to be distributed in partition suits is the value of the property in contest; and if that value is alleged by plaintiff (as in this case) they can not be heard to dispute their judicial allegations or withdraw them, 35 An. 19; 34 An. 1063 and 1066; 29 An. 326; 28 An. 935; 21 An. 487, On Estoppel sec 31 An. 82; 7 An. 458; GM. 280; 11 An. *710; 4 An. 416; 5 An. IS; 21 An. 82; 38 An. 528; Gray vs. Gray.
    On the Mehitk.
    1. Contracts made in one State to be performed in another are to be governed by the law of the place of performance as to validity, nature, obligation and interpretation. O. 0., Art. 10; American and English Encyclopedia of Law, vol. 3, pp. 561-570.
    2. The Lex Loci lid Sitm governs as to all transfers of real estate. United States, vs. Crosby, 7 Or. (U. S.) 115; American and Eng. En. of Law, p. 563; 31,a. An. 418.
    3. iso prescription applies between parties setting up counter claims against each other, and the rule “qua: temporatio sunt ad agendum,” etc,, applies for defendant's benefit in this case. 17 An. 246.
    4. Appellant and appellee only affected by appeal. 20 An. 121.
   On Motion to Dismiss.

The opinion of the court was delivered by

Bermudez, O. J.

This is a partition suit on which a claim for rent has been engrafted.

The plaintiff, Mrs. Oxford, claims to be the owner, to the extent of one-fifth thereof, of 840 acres of improved land, in common with her two brothers, and her sister and her mother, who each owns a like proportion.

She claims rents of the property from her mother, from the time of her marriage, in the fall of 1883, with James M. Barrow.

The defense is, that plaintiff is owner of one-eighth only, and not entitled to any rent. Various counter claims are set up against her.

A judgment was rendered below, on the issues presented by the parties, which has satisfied neither of them.

The plaintiff has appealed from that judgment, and the defendant^ Mrs. Barrow, after moving to dismiss the appeal, has prayed for an amendment of it, in several respects.

The motion to dismiss is based on thé ground of want of jurisdiction ratione materiae.

It is without foundation.

The property, the partition of which is sought, is. valued at $1900, although appraised in an inventory found in the .record at $2100; and the claim for rent, during about seven years at $150,,aggregates some $1050, if not more.

This court is surely competent to pass upon the merits of a controversy involving such matters. .

The motion to dismiss is denied.

On the Merits.

I.

The plaintiff claims to be the owner of one undivided fifth of certain 840 acres improved land in the parish of Jackson, in this State, by virtue of a purchase made thereof, on the 19th day of January, 1881, by her mother, then the widow of D„F,i Walker (plaintiff’s father), from W. J. Lawson, of Georgia,, for,the. price,,paid cash, and received by vendor, of twenty-three hundred dollars ($2300), the purchaser buying “in her own right.and ,for her four children ’ ’ (named in the deed, ambng whom the plaintiff).

The act is silent as to the proportion in which the property purchased is to accrue to and vest in Mrs. Walker and her children,

It is upon this circumstance that the plaintiff grounds herself, to claim that the property has passed by fifths, contending that the law is, that a deed conveying land to several persons, by name, and not stating the interest devised to each, necessarily conveys to them a joint title. On the other hand, Mrs. Walker, now Mrs.. Barrow, contends that, though true it be that the deed is thus silent, the fact and the truth are, that her interest is one-half, and that of her four children jointly is alike. She says that, at the time of the purchase, she had in hand the amount paid, $2300, comprised as follows: $1200, balance of $1500 which she had received in Georgia in 1873, the day previous to her husband’s death, and $1100 which she owned before her marriage with him, and had preserved.

There can be no doubt that she had the $2300 at the time of the purchase, for the vendor acknowledged receipt, and the act or deed on which plaintiff relies and can not contradict, conclusively establishes that important fact. :

Besides, there is corroborating proof of the truth 'of the assertion.

Strictly, Mrs. Walker had no right, her chiidréh being minors at the time, to invest the money coming: tojthem, from their father, the i-way she did, in the.-property in question’. .,She was liable to them for iitj-an'd,--at the .proper time and. under,.proper circumstances, they ; could'have mailed on'her to account andto pay them, their respective share therein. • • ■■

•-.Be .this-, as it .may, she invested it in .the-property,, and they all have ratified the investment, conspicuously tb.e plaintiff, wl?o,asserts a title to an undivided share of the same.. . ,...,« ; ...

One thing is certain, and it is, that they together can not claim more than the $1200 invested have acquiredfor the balance of the price was not paid out of any money coming from Mr. Walker, or his estate; :but with money the individual-property of-Mrs. Walker.

The $1500 received did not accrue to the children exclusively, but -to then! and to their mother — whether she-claimed dower or a child’s Share, under the laws of Georgia. The least -she could have claimed would have been one-fifth — an heir’s portion.

'Conceding that the $300 wanting; which were spent to minister Unto common necessities, were chargeable to the children and their mother ratably, then Mrs. Walker’s share in the rest would have been, on- the basis of one-fifth, $240, which, added to her $1100, -would raise the amount individually owned by her to ;$1340. This would entitle her to a proportion larger, than .the half which she claims, and with which she appears content. .

-The other three children seem, to be satisfied with, the correctness of their mother’s claim; for they have compromised with her on the basis 'of one-eighth to each of them, by consenting to.accept 105 acres, each of the 840 acres in question.

This-applies even- to D. F. Walker (son), in whose name this suit was originally brought, but who, subsequent to its institution, has authorizeda settlement with his mother- on that basis. This is admittedlyfche fact, as is acknowledged by counsel for plaintiff, Mrs. Oxford, in their brief in her behalf.

H.

The claim of the plaintiff for her share in the rents and revenues of the property at $150 per annum, is inadmissible, for the reason that she has enjoyed the property herself in the proportion of one-fourth of the half, or one-eighth of the whole, during five years, and that the demand for the surplus is barred by. prescription, which is set up by Mrs. Barrow.

m..

'' :|'G'n the c'thér hand; the' eóimter claims of the'latter'against the pláiritíif as- her share iri the various arnounts stated, and which it wo'uld: be onerous árid-useless to specify in detail,'for board and main!tenariee; for store accounts, clothing, travelling, weddirigoutfit, etc., '' -cari not'be allowed, even if riot barred by the'prescription pleaded— 1 for the double re'ásori,' that,' urider the law, she' owed1'support and ’maintenance' to'her children, and that the -proof shows that she : ' íéeéiVed'moré than' the equivalent of the same, in the1 shape of services of her children, who have, to a considerable-éxtent, supported themselves, as soon as they were able to do so.

The claim for taxes and keeping in repair is not allowable.

The defendant had the possession and enjoyment óf the property, as though usufructuary, and not being liable for rent, was chargeable for the taxes and keeping in order.

IV.

The claim for the improvements said to’ have been put upon the land by the defendant can not be countenanced, even pretermitting the question of her right of suing therefor, when the claim, if any, could only be asserted by the community. '

She had no right to improve the land without the consent of her eo-proprietors, and she can not claim the value of the buildings, etc., in this way, even if her eo-proprietors, instead of requiring their removal, insisted on retaining the same.

In cases of this description, where the land and improvements are not owned in common exclusively by the same persons, but buildings, etc., have been placed on the land by one of the owners, and a partition is necessary (the property not being susceptible of a convenient division in kind), the proper course to pursue is to have the land and buildings' appraised separately, to operate:a “ventilation” of the proceeds of sale; the same to be distributed in relative proportion to the valuations.

The judgment appealed from recognized title in plaintiff to the extent-of one-eighth of- the whole, and of Mrs. Walker-Barrow, of one-half, and directed a partition by sale of the property-; but it adjudged further, in different other ways, against the' plaintiff, which it would be cumbersome and - unprofitable to mention, and which do not fully accord with the views just announced.

It is therefore ordered and decreed that the judgment appealed from, as far as it establishes the proportion of co-ownership between the plaintiff, Mrs. Oxford, and the defendant, Mrs. Barrow, to be one-eighth in the former and one-half, or four-eighths, in the latter, and directs a partition by public sale of the property held in common be affirmed, and that in other respects it be reversed; and it is now adjudged that the demand of plaintiff for rent, and the various counter claims of the defendant, be rejected; the costs of the lower court and those on appeal to be borne equally by the appellant and appellee.  