
    (64 South. 226.)
    No. 19,840.
    SUCCESSION OF LUND v. BACCICH & DE MONTLUZIN.
    (June 30, 1913.
    On Rehearing, Feb. 2, 1914.)
    
      (Syllabus by the Court.)
    
    1. Executors and Administrators (§ 372*)— Sale of Property — Proceedings Against Adjudicatee — Jurisdiction.
    A court which has authority to order the sale of property in a probate proceeding has jurisdiction to compel the adjudicatee at the sale to complete his contract, although he may not reside within the parish over which the court has jurisdiction.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 1518, 1527; Dec. Dig. § 372.*]
    2. Judgment (§ 540*) — Res Judicata — Plea.
    Where the parties to suits are not the same and the facts are different, the plea of res judicata will not lie.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1079; Dec. Dig. § 540.*]
    3. Executors and Administrators (§ 372*)— Sale of Property — Proceedings Against Adjudicatee — Sufficiency of Evidence.
    The evidence of the various witnesses shows that the land in question is not cut by a bayou and is not public land, and is therefore not subject to the objections of defendant on this point.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 1518, 1527; Dec. Dig. § 372.*]
    4. Executors and Administrators (§ 372*)— Sale of Property — Proceedings Against Adjudicatee — Defense — Existence of Mortgage.
    As the mortgage on the property is to be paid out of the purchase price and the vendee tendered a title free from all incumbrances, they cannot urge this mortgage as a reason for not accepting title.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 1518, 1527; Dec. Dig. § 372.*]
    Appeal from Thirteenth Judicial District Court, Parish of Rapides; W. F. Blackman, Judge.
    
      Proceedings by Succession of Lund against Baccicb & De Montluzin, adjudieatees, on rule to show cause why they should not be ordered to accept title and make payment. Erom a judgment for defendants, plaintiff appeals.
    Reversed on rehearing.
    W. C. & J. B. Roberts, of Colfax, and Foster, Milling, Brian & Saal, of New Orleans, for appellant. White & Thornton & Holloman, of Alexandria, and E. J. Dreyfous and A. D. Danziger, both of New Orleans, for appellees.
   PROVO STY, J.

Real estate situated in New Orleans having been offered for sale at public auction in New Orleans by virtue of an order made by the district court of the parish of Rapides in the matter of the succession of H. W. S. Lund, in course of administration in said court, and the defendants Baccich and De Montluzin, residents of New Orleans, having become the adjudicatees, and having refused to adcept title, the present proceeding was instituted against them in said court.

It is a rule to show cause why they should not be ordered to accept title, and be condemned to pay the price of said adjudication ; or, in case of their failure to do so within five days from rendition of judgment, why said property should not be sold a la folie enchére.

They pleaded to the jurisdiction of the Rapides court, ratione personte. The rule is that a party can be sued only at his domicile. C. P. 162. To that rule there are exceptions; and the plaintiff in rule contends that this case falls within the exceptions stated in article 164, O. P., as follows:

“In matters relative to successions, the defendants, though domiciliated elsewhere, must be cited to appear before the court of the place where the succession has been opened.
“1. In all suits brought by the heirs against each other, until after partition inclusively.
“2. In all suits brought by the creditors of the deceased previous to the partition.
“3. In all suits relative to the execution of testamentary dispositions until the final settlement of the affairs of the estate has been effected.
“4. When a partition of a succession has been or may be made belonging to one or several heirs, who are present or represented therein, all the real and personal actions, or others which are relative to said succession, shall be brought against the said heirs before the court where the said succession is opened.”

The present case, manifestly, does not come within either the letter or the spirit of any one of these exceptions. It remains therefore under the rule.

In the ease of Succession of Carraby, 3 Rob. 349, the syllabus reads:

“Where a stranger to a succession withholds the price of property purchased at a sale of its effects, an action for the amount can be brought only before a court of ordinary jurisdiction.”

The judgment appealed from is therefore set aside, the plea to the jurisdiction is sustained, and the rule of plaintiff is dismissed, with costs in both courts.

On Rehearing.

BREAUX, O. J.

Baccich & De Montluzin, at a succession sale of property belonging to the succession of H. W. S. Lund, became the adjudieatees of the tract of land of the late H. W. S. Lund. After the adjudication, they refused to sign the deed of- sale made to them in accordance with the adjudication.

Because they would not comply with their bid, the testamentary executrix of the succession sought by rule to compel them.

The rule recites the price of the adjudication, and gives a description of the property. It also mentions that 10 per cent, of the price was deposited as required, to use a well-understood expression in business, “to hold the bid.” In the prayer of the rule, plaintiffs ask an order from the court to compel these adjudieatees to sign the notarial deed tendered and pay the price, which amounted to $42,975, with 8 per cent, per annum interest from December 7, 1911. There were other recitals in connection with the price and. other details gone into, in regard to it.

In the alternative, plaintiffs in rule ask that the property be resold after legal delays and advertisements at the risks and expense of the defendants in rule.

Part of the prayer asks for specific performance. Although inartfully drawn, effect is given to it. The demand was substantially for a sale á la folie enehere.

The defendants in the first place pleaded res judicata.

In the ease of Zagama v. City of New Orleans et al., 128 La. 386, 54 South. 916, between different parties and relating, not to the same property, but to property on the Gentilly Road, this court decided adversely to the issues presented in this case; but it must be said here that the evidence materially differed between the two cases. The decision rendered in this case is cited as res judicata. Zagama v. City of New Orleans, 128 La. 388, 54 South. 916.

The defendants filed an exception in the district court to the jurisdiction of the court, as they resided in the city of New Orleans, and not in Rapides parish, where the late H. W. S. Lund lived at the time of his death.

The defendants pleaded the general issue except in so far as they admitted certain facts alleged. They admitted that they purchased at public auction on December 7,1911, for the price before mentioned, but they denied that a good title had'been tendered to them; that, on the contrary, it is a title suggestive of lawsuits. They represent that it was the duty of the vendor to deliver the land which they have agreed to sell, which plaintiffs failed to do.

They alleged further that the city of New Orleans was -entitled to a. right of servitude of way along the banks of Bayou Gentilly, or that in any event the said Bayou Gentilly is (no) part of the public domain, but that the city has the right to convey its rights to the bayou and to the roads.

If that be correct, then they claim that they are entitled to a reduction of the price proportionate to the value and extent of the property adjudicated to them to which no title can be given, and for which no tender has ever been made. They represent: That value of the property tendered to them has deteriorated on account of the Bayou Gentilly and the roads to which the city of New Orleans has a right of servitude. That because of this alleged servitude the property is worth less than they had a right to think it was worth at the time it was adjudicated to them. That the bayou and the roads divide the front of the property and leave a small margin along the present Bayou Gentilly Road. They also said that it was their intention originally to pay cash for the property; that, in the event the court found that the title is sufficient to the entire tract, then that they should not be condemned to pay more than the legal rate of interest less the amount deposited by them in the hands of the auctioneer. They ask for a dismissal of the rule taken out against them, and in the alternative that the succession be condemned to pay to them that portion of the price of the land of which the succession is in possession.

The first proposition for discussion (raised by defendants for the first time on appeal) relates to the plea for specific performance and the alternative plea for a resale urged by plaintiffs in rule, which they aver is not sufficiently clear to sustain a judgment.

It is hardly proper at this time to dismiss the action on the grounds urged. The defendants in rule are called upon by it to specifically perform their contract, and, in case it is not performed, then the plaintiffs ask that the property be resold. In one sense it was possible to aver that the defendants should pay or that the property be resold. As an independent proposition, specific performance cannot be ordered- at this time and in these proceedings, by reason of the fact that the court at the succession domicile is without jurisdiction to compel specific performance. The district court of Rapides had jurisdiction to order the resale; but that was all. The court may have jurisdiction of one of the grounds of the action and not ■of another and pass upon the former. The question of the right to the resale will be ■decided.

Jurisdiction.

We held heretofore in the present case that the district court of Rapides parish, in which the succession was opened, has no jurisdiction of the transfer to the defendants, .and it follows no authority to issue an order to resell the property.

Defendants, after they had become adjudi•catees, declined to accept and sign the deed. They refused to complete the sale. They had .substantially bound themselves to sign this deed. It was an obligation on their part to sign, but, owing to their refusal, it remains .an incomplete act in the settlement of the succession. The court had sufficient jurisdiction to assert its authority. By becoming adjudicatees, the defendants had made themselves parties to the proceedings; they rendered themselves subject to the court’s authority to compel them to do that which they had bound themselves to do or show reasons to justify their conduct. Jurisdiction •continues until the sale is completed and the deed signed. Until then, the court having probate jurisdiction has authority to compel •obedience regarding the signing of the auctioneer’s deed or to order that the property be resold.

The following authority is in point: Landry v. Connely, 4 Rob. 127.

A similar view sustaining the right claim•ed by plaintiffs was expressed in Raquet v. Barron, 6 Mart. (N. S.) 659.

The court said in the last-cited case: The court of probates has jurisdiction to compel purchasers to make their contracts complete by affixing their signatures and giving their notes.

This proceeding is one in rem.

See, also, Harris v. Harris, 12 La. Ann. 10; Succession of Haggerty, 28 La. Ann. 87; Lewis v. Casenove, 6 La. 437; Succession of Bobb, 27 La. Ann. 344; 24 Cyc. p. 30; Davis v. Trust Co., 152 U. S. 590, 14 Sup. Ct. 693, 38 L. Ed. 563.

We think that the jurisdiction upon this subject passed from the parish courts, sitting as courts of probate, to the district court as relates to the point here.

For reason stated, the decision heretofore handed down by this court on this subject is recalled and annulled.

Res Judicata.

The plea of res judicata is not sustained by the evidence. The parties to the suit are not the same as those who were parties in the case cited as sustaining defendants’ demand,, to wit, Zagama v. New Orleans, 128 La. 388, 54 South. 916.

As to the identity of the property: It is not the same, although contiguous. The evidence is different in one or two important particulars, as stated above. But, on account of these important variances and differences in the two cases, we must decline to grant the prayer which would result in dismissing the present 'suit. The similarity in the law points decided is not absolute because of the difference in the facts.

On the Merits.

It appears that there are dwelling houses standing where the bayou formerly ran. . The sidewalk is on the south bank or elevation in front of the Lund place. This property measures 6 arpents by 14 toises front on Gentilly Boad by a depth of 20 arpents. There is a diversion in the side line, and in consequence the property measures 7 arpents and 15 toises in the rear. This property is about a mile below Gentilly Terrace. The bayou runs toward the lake, or the east. It was stated by witnesses that voluntarily the owners of the land in the locality have made the roadway in front of Gentilly Terrace 106 feet. There were other changes made, we are told. There are two ridges, or rather elevations, on Gentilly extending on to the Lund place and a depression between the two on either side of the ridge. Away from these depressions, the lands are practically level. There is no navigable stream at this point, and there never was, judging from the height of the bottom and the manner the stream has had its origin. Besides, there’ were trees and stumps in the former bayou which were very old and which completely obstructed navigation. Many of them are still in this bayou. Every one know's that cypress trees are of slow growth. Some of the trees in this bayou have the appearance of being over 100 years old. A map of survey (not sustained by proof) was introduced in evidence to show that the stream was at one time navigable. It is a survey made in 1870 of private claims and public sections. Well-known United States deputy surveyors agreed in stating that this survey is erroneous; it shows an attempt at meandering the stream. They stated that only navigable streams are meandered under instructions of the government, and that the government never instructed any one to run this meander line. They testified that they are familiar with the instructions issued by the government. They knew the locality and testified positively that the depression in question never formed a navigable stream. One of these surveyors testified that the level of the bottom was too high, even for drainage.

Another United States deputy surveyor, who is an old man, testified that the bayou was never a navigable stream at the point where defendants urged it was navigable. He said that there was a mere depression, called it a swale, between two ridges. He corroborated the testimony of others that in the bed of this stream there are cypress trees, underbrush, prairie grass. He said substantially as a witness that, while the surveyor, Sulakowski, was surveying in the early 1870’s and was attempting to meander this low place, he knew of his work. He stated that he was familiar with the Bayou Sauvage, the name of the swale; it had not been navigable, to his personal knowledge, these past 50 years, and from the appearance of the land it had not been navigable for at least a century.

The secretary of the Gentilly Terrace Committee, in charge of the public works of that place, said substantially that it was not navigable and that he had never heard that it had ever been navigable. He resided at the place.

The title to this land has a history beginning from the time of the colonies. The first title bears date from 1778 and another from 1775. Neither makes mention of a stream, of any consequence at any rate. The descriptions of the deeds in the act subsequent do not make mention of the lost bayou. The following is a description in the act of April, 1777, in which it appears that Madam Pelagie Lorainne, widow of Baptiste Brazilier, cor veyed as follows:

“The land which I own, forming part ot Bayou Gentilly, without any reservation, except the same bayou with all its denominations. The said land is located and bounded on one side by the land of Gabriel Peysoux, and on the other side by the said Antoine Gilberto Maxent, being in the situation or place in which it may be, either in front or in the rear, to start as soon as (from) the bayou, which I reserve for myself. (Italics ours.) I have acquired said land by inheritance from my said husband.”

It is not possible that this widow was the owner of a navigable bayou, as one would have to infer if the description above included a navigable stream. It evidently did not. The tract in the different deeds is nearly always referred to as fronting on Gentilly Road, not on any bayou. Whatever may have been done by the Land Department of the United States cannot deprive owners of the right acquired during colonial days or prior to any attempt (if any was made) to have the property declared as part of a public domain. These early grants are protected by the first treaty of Paris, that which ceded the territory of Louisiana to the United States.

As to the maps: If any have a tendency to prove that there was a navigable stream on this land as claimed by the defendants, it must have been over a half a century ago. The testimony is overwhelmingly for plaintiffs on this point. We have read the legends of the different maps, and, after having given them serious consideration, it does not appear by them that there was a navigable stream (only with the exception of the survey to which we have before referred).

We pass from the question presented by defendant with the statement that the land is not a locus publicus.

In regard to mortgage upon the property: We find the following in the record as testified to by Mr. Brian, attorney: That the mortgages are to be paid and canceled out of the cash portion of the purchase price. We take it that this is not particularly objected to. There is a tone about his evidence which leads us to infer .that it is pretty well understood that this question of itself is of no ■ moment.

We regret because we are not as positive as we should be on this point that index ref'erences to certificate, page 198 of the record, is error; there is no certificate of mortgage copied on that page. We assume that it was the certificate intended.

Be all this as it may, of course the mortgage must be timely paid.

For reasons stated, it is ordered, adjudged, and decreed that our judgment heretofore rendered in this case is avoided, annulled, and reversed. It is further ordered, adjudged, and decreed that the judgment of the district court declaring that the court has jurisdiction is affirmed. It is further ordered, adjudged, and decreed that we take notice of the demand for specific performance only as having put defendants in default, and that if the latter do not sign the deed tendered to them to be signed within ten days that the property then be resold. The amount just above alluded to which must be paid is $47,750. Of that amount not less than $23,-330.33 cash, balance at the option of the purchasers, in cash for equal amounts of one, two, three, and four years, with interest payable annually at 8 per cent.; purchasers to assume all taxes for 1911.

To copy literally and reiterating the terms of the sale as they are repeated in the advertisement :

Cash for not less than two-thirds of the appraisement of the profoerty, being $23,-330.33; the purchaser to assume all taxes for 1911, and for the balance, if any, or excess of the bid to be paid in cash at the option of the purchaser or divided in four equal installments, due one, two, three, and four years from the date of sale, drawing interest at the rate of 8 per cent, per annum payable at the order of the purchasers and by him and them indorsed, said notes to contain the usual 10 per cent, attorneys’ fees,-special mortgage and vendor’s privilege retained; notes and bonds to be executed; 10 per cent, deposited heretofore to be' credited on the price.

It is further ordered, adjudged, and decreed that the judgment appealed, from is annulled, avoided, and reversed; the appellants pay the cost of appeal and of the district court.

In reproducing the terms in our decree we have been obliged to reiterate as in the original in order to convey the meaning.

As to the rate of interest, of which defendants and appellees complain, we make no change from 8 to 5 per cent., as we are not of the opinion that under the terms of the sale such a change would be justifiable.

PROVO STY, J., being absent on account of illness, takes no part.  