
    ORLEANS PARISH SCHOOL BOARD v. Mrs. Adrian CAMPBELL, widow of James J. MANSON, et al.
    No. 21412.
    Court of Appeal of Louisiana. Orleans.
    April 11, 1960.
    On Rehearing Nov. 14, 1960.
    Rehearings Denied Jan. 30, 1961.
    Certiorari Granted Mareh 13, 1961.
    
      Samuel I. Rosenberg, New Orleans, for plaintiff and appellant.
    Phelps, Dunbar, Marks, Claverice & Sims, Charles M. Lanier, New Orleans, for defendants and appellees.
   REGAN, Judge.

Plaintiff, the Orleans Parish School Board, instituted this suit against the defendants, Adrian Campbell Manson, widow of James J. Manson, Lucille Manson, wife of Steve C. Tate and James J. Manson, Jr., requesting the rendition of a declaratory judgment decreeing that it has a merchantable title to Lots 13 and 14 of Square 5 in Tunisburg, located in Algiers, Louisiana, and that defendants have no interest in this property donated by the late James J. Manson to the City of New Orleans for public school purposes.

Defendants responded to this suit for a declaratory judgment and in their answer denied plaintiff’s ownership and prayed that the court order plaintiff to reconvey the lots to them, since the city and its transferee, the School Board, failed to comply with the condition of the onerous donation, that is, that the lots be used for public school purposes, and, therefore, the donation should be revoked or dissolved.

From a judgment in favor of the defendants, revoking the donation made by James J. Manson, declaring null and void the transfer by the city to the School Board and recognizing the defendants as the owners of the property and sending them into possession thereof, plaintiff has prosecuted this appeal.

The pertinent facts and documents upon which the declaratory judgment of the trial court was predicated are all contained in a stipulation entered into between the respective litigants. Summarized, these facts are as hereinafter set forth:

On January 9, 1912, by notarial act, James J. Manson, in consideration of the payment of $1,550 cash, conveyed to the City of New Orleans Lots 8, 9, 10 and 11 and part of Lots 7 and 12 in Square 5 of Tunisburg subdivision. In addition to the conveyance, and purportedly “in consideration of the purchase by the City of the above decribed property” for the price and sum mentioned, Manson donated to the city “to be used for public school purposes” Lots 13 and 14 in Square 5. Subsequently, on July 5, 1955, by notarial act, the city transferred these lots to the Orleans Parish School Board, the plaintiff herein.

Defendants, Mrs. Adrian Campbell Manson, Mrs. Lucille Manson Tate and John J. Manson, Jr., are, respectively, the widow, daughter, and son of John J. Manson, who died on May 12, 1952. By virtue of the judgment of possession rendered in the Succession of John J. Manson, Mrs. Adrian Campbell Manson has been recognized. as the decedent’s widow in community and Mrs. Lucille Manson Tate and John J. Manson, Jr., have been recognized as his surviving children and sole heirs, and as such, have been placed in possession of his entire estate.

The decedent married Adrian Campbell on June 1, 1892 and the property described above was acquired by the decedent on September 4, 1908, during the existence of the community of acquets and gains and with community funds. While the property was not inventoried or mentioned in the Succession of John J, Manson, it is conceded that at the time the donation was made that it constituted a part of the community of acquets and gains existing between the decedent and Adrian Campbell.

The property acquired by the City of New Orleans from John J. Manson was obtained because of the necessity of the removal from Lots 5, 6, 12, 13, 14 and 15 of Square 1, Tunisburg subdivision, of the Lawton White School, so as to make that site available to the United States Immigration Station for the expansion thereof. The old site was conveyed by the city to the federal government for the sum of $2,050, plus the cost of removing and renovating the buildings, and the resulting sum was then used to acquire eight lots to which the buildings would be removed. The lots acquired were those conveyed by Manson for $1,550, to which the original Lawton White School was transferred and Lots 13 and 14 of the Streuby subdivision, which were acquired from Mrs. Sophia Lullman, widow of Ferdinand Streuby, for the remaining $500, to which one of the buildings was removed for the establishment of a colored school. To reiterate, Manson donated two additional lots for the site of the Lawton White School.

This school was continued in operation for about 14 years or until the year of 1926, and thereafter the property was rented and the funds were used for school purposes until 1953, at which time the buildings were condemned and demolished and the school board advertised its desire to dispose of the property by sale. This suit for the rendition of a declaratory judgment was provoked as a result of the defendants’ demand for the return of the donation of Lots 13 and 14, when they were informed of the condemnation and demolition of the buildings and the contemplated sale thereof by the school board. To again reiterate, the lower court rendered a declaratory judgment in favor of the defendants, revoking the donation made by John J. Manson, declaring null and void the transfer from the City of New Orleans to the school board, and recognizing the defendants as owners of the property and putting them into possession as such.

At the very inception of this case, we were concerned as to whether the controversy entitled the litigants to proceed under the Uniform Declaratory Judgments Act. This pertinent question, in view of the existing jurisprudence, was not raised by the litigants either in the lower court or in this court. However, during oral argument, one of the members of this court expressed doubt that this'case was encompassed by the act in view of its restricted use in our procedural law as set forth by the jurisprudence of this state.

The most recent pronouncement by the Supreme Court of Louisiana was most emphatic in rationalizing that:

“The test to be employed in determining whether a case is properly one for declaratory relief has been clearly defined in our jurisprudence. It has been decided that the statute may not be invoked unless there is a justiciable controversy. (Tugwell v. Members of Board of Highways, 228 La. 662, 83 So.2d 893 and State v. Board of Supervisors, etc., 228 La. 951, 84 So.2d 597) and, further, that use of the act is limited to matters in which out own procedural law does not provide the party seeking relief with an adequate remedy. Burton v. Lester, 227 La. 347, 79 So.2d 333; see also Smith v. Smith, 230 La. 509, 89 So.2d 55 and Theodos v. Bossier City, 232 La. 1059, 95 So.2d 825.” (Emphasis added.)

We have no doubt that this case poses a justiciable controversy between the plaintiff and defendants, but it seems clear that the dispute possesses no unusual characteristics which could not be adjudicated by virtue of the institution by either litigant of a real action to determine ownership of the property.

In Burton v. Lester, supra, the Supreme Court, having observed that the frequent use of the Uniform Declaratory Judgments Act in this state made it imperative that it elucidate upon its views respecting the general application thereof, set forth the policy by which the district courts of this state were to be guided. In doing so, it rationalized thus:

“The statute is undoubtedly a most valuable supplement to the cumbersome common law procedure but its worth to a State like Louisiana having a Code of Practice which has worked satisfactorily and efficiently for over 80 years, remains to be proven. At any rate, we do not believe that the statute should be employed as a substitute for the well-defined actions provided for in our Code of Practice or those which have been established by jurisprudence unless, by reason of the special circumstances of the case, the codal procedure does not furnish an adequate remedy.
“ * * * Hence, we must perforce construe and apply the act according to its own terms, giving due regard to our established procedure so that it may take a useful and proper place therein. By adopting this course, we deduce, as we have stated above, that the Act is merely an adjunct to the civil procedure outlined in our Code of Practice of 1870 and should not be substituted therefor, save upon a showing by the litigant seeking the declaratory relief that the ordinary or summary proceedings recognized in the law and jurisprudence do not avail him an adequate remedy. * * *" [227 La. 347, 79 So.2d 335]

The litigants, as we have observed here-inabove, have made no showing whatsoever that the ordinary proceedings recognized' both by the law and the jurisprudence of this state do not avail them of an adequate remedy. Indeed it appears from a mere statement of the case that the litigants, possess a complete and actually more effective remedy in the well-defined actions, provided for in our Code of Practice and the jurisprudence.

It is evident that the use of the declaratory judgment procedure in this instance has prolonged the litigation rather than, as is its stated purpose, simplified it. The result hereof would not have been possible if the ordinary procedure provided by the-Code of Practice and the jurisprudence had; been invoked by either litigant.

The judgment appealed from is annulled' and set aside and the petition of the plaintiff is dismissed.

Judgment annulled and petition dismissed..

On Rehearing

YARRUT, Judge.

On the joint application of both parties we granted a rehearing to review our dismissal, ex proprio motu, of this suit, on the ground it was not a proper case for a declaratory judgment. No objection to the character of the suit was urged below or here, the court below having decided the case on its merits. Our dismissal ex pro-prio motu was made on the holding in Orleans Parish School Board v. City of New Orleans, 238 La. 748, 116 So.2d 509. The reason for the dismissal was that the action for a declaratory judgment cannot be used when the law has otherwise provided an adequate legal remedy. Orleans Parish School Board v. City of New Orleans, 238 La. 748, 116 So.2d 509; Burton v. Lester, 227 La. 347, 79 So.2d 333; State ex rel. La Nasa v. Hickey, 222 La. 17, 62 So.2d 86, Intrusion into office.

As this suit involves title to an immovable, we held that the School Board could not avail itself of the declaratory judgment statute, but was relegated to one of the real actions for redress.

The Board first recites its acquisition of two lots of ground from the City of New Orleans, which in turn had acquired them from one Manson, in 1912, in a notarial act of donation requiring that the lots “be used for public school purposes;” then charges that the widow and heirs of its deceased donor openly claim it has forfeited title by offering them for sale to the public generally. The Board then concludes with a prayer for a declaratory judgment that its title be held not subject to divestiture by defendants, and that it is good and merchantable. Defendants do not question plaintiff’s title or possession, but reconvene for revocation of the donation and revendication of the lots to them.

In connection with the use of the Uniform Declaratory Judgments Act in this proceeding, LSA-R.S. 13:4231 through LSA-R.S. 13:4236, a brief recital of the pertinent provisions should make it clear that this is a proper case for its use:

“R.S. 13:4231. Courts of record within their respective jurisdictions may declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect; and such declarations shall have the force and effect of a final judgment or decree. * * *
“R.S. 13:4233. A contract may be construed either before or after there has been a breach thereof. * * *
“R.S. 13:4235. The enumeration in R.S. 13:4232 through R.S. 13:4234 does not limit or restrict the exercise of the general powers conferred in R.S. 13:4231, in any proceeding where declaratory relief is sought, in which a judgment or decree will terminate the controversy or remove an uncertainty.
“R.S. 13:4236. The court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding.”

From a casual reading of the provisions of the Declaratory Judgment Statute, quoted supra, it seems clear that this is a case squarely within its contemplation. There is no contest here about title or possession usually involved in a petitory, pos-sessory, jactitation action, or the action to establish title to real estate. The pleadings as a whole, and the factual admissions by stipulation, show that the donor’s heirs and the donee of an immovable disagree whether or not the donee has or will forfeit the donation by committing a certain act or failing to perform a certain condition or obligation imposed by the act of donation. In order not to lose the donation the donee seeks a declaratory judgment. Any obligor, whether lessee or donee, burdened with forfeiture in the event of his negative or affirmative act, violative of his literal obligation, has a right to declaratory relief to guide him in the avoidance of such forfeiture.

However, assuming there were no declaratory judgment statute, the pleadings must certainly be construed as an action in jactitation by the plaintiff, converted by the defendant into a petitory action. Arent v. Hunter, 171 La. 1059, 133 So. 157; Hunt Trust v. Crowell Land & Mineral Corp., 210 La. 945, 28 So.2d 669; Miami Corp. v. State Mineral Board, 218 La. 163, 48 So.2d 643; Sims v. State Mineral Board, 219 La. 342, 53 So.2d 124; Bates v. Monzingo, 221 La. 479, 59 So.2d 693.

Since the Board is seeking to judicially determine its right to sell the property and use the proceeds, it has a right to declaratory relief in order to avoid losing the donation.

Accordingly, we must confess our error in dismissing the suit as an improper case for a declaratory judgment, and proceed with the case on its merits.

On the merits, the pertinent facts stipulated by the parties are:

By notarial act in January, 1912, the City of New Orleans acquired from James J. Manson six lots of ground, four for a recited consideration of $1,550 cash, and the other two (involved here) under the following recital:

“And the said James J. Manson did further declare that, in consideration of the purchase by the City of New Orleans of the above described property for the price and sum mentioned therein, he does, by these presents cede, donate, abandon, set over and deliver, without any cost whatsoever to the City of New Orleans, to be used for public school purposes, the following described property, to-wit:”

From 1912 to 1926 the city used the property for a public school. From 1926 to 1939 the school was abandoned, and the property rented for $10 per month, the rental used for support of the public school system, all during the life of the donor, who died in 1952, without any objection or protest from the donor. In 1953 the school building was demolished, having been condemned as unsafe. The School Board then offered the property for sale, provoking the extrajudicial claim of defendants, and the institution of this action by the Board for a declaratory judgment.-

The School Board contends the transfer by Manson in 1912 was a remunerative donation or a dedication for public use without any stipulation that title would revert to the donor in the event it ceased to be used for that purpose. Alternatively, the Board contends that the condition does not require that the property be-used physically as a school site, but it would suffice if the rentals or proceeds from a .sale be used for the support of the public schools.

LSA-Civil Code, Art. 1523 defines three-classes of donations inter vivos: Gratuitous, onerous and remunerative. The gratuitous donation is one which is made without condition and merely from liberality.. The onerous donation is one which is burdened with charges upon the donee; and a remunerative donation is one to compensate for services rendered.

It is clear the donation was not made from liberality, although the donor was influenced to make the donation because the donee had purchased four other lots for a. cash consideration. The lots were transferred solely upon condition that they be used for public school purposes. As the donor was developing a residential subdivision, a school located nearby would' naturally accelerate the development. It is clear, then, that the donation was an/ onerous one, burdened with the charge concerning its use; and was a convenant running with the land.

The School Board also contends-, that the transfer was a dedication to .the public generally for public use. While the Ordinance adopted by the city authorizing; acceptance refers to it as a “dedication,” the notarial act of transfer recites the transfer is a donation to the city for a specific use, to-wit, public school purposes. The unilateral declaration in the Ordinance ■could not supersede the bilateral stipulation in the act of donation.

The School Board further contends that, since there is no specific clause that the property would revert to the donor or his heirs, in the event of the violation of the condition, neither the donor nor his heirs can seek revocation and revendication of the property. This contention is contrary to LSA-C.C., art. 1559, which provides that a donation inter vivos can be revoked in case of the nonperformance of the conditions imposed upon the donee. Art. 1566 provides that the donation is not dissolved of right by nonfulfillment of such conditions, but must be sued for and demanded judicially. This defendants have done in their answer to the Board’s petition for a declaratory judgment.

In Voinche v. Town of Marksville, 124 La. 712, 50 So. 662, the Supreme Court recognized the right of the donor to seek return of land donated to the town to be used for the erection and construction of a market house, which the town failed to do. 'The Court recognized the principle of the civil law that the donee is bound to execute the charges or obligations imposed upon him by the act of donation, in the same manner and to the same extent as a debtor in any ordinary contract. It necessarily follows that the right of revocation exists •as a matter of law, with respect to an •onerous donation, as it does in any ordinary commutative contract, without such right being expressly reserved.

The case of Board of Trustees, etc. v. Richardson, 216 La. 633, 44 So.2d 321, holds squarely that a church, to which land had been donated on condition it be used for religious purposes, took the land subject to such condition and could not sell the property for use as a business site. This case expressly overrules 'the holding in the case of Board of Trustees, etc. v. Rudy, 192 La. 200, 187 So. 549, strongly relied upon by the School Board.

The conclusion here must be that the donation was an onerous donation conditioned that the property be used for public school "purposes. This can mean nothing less than the physical use for that purpose, and not the use of rentals or cash proceeds from its sale.

Accordingly, once the School Board parts with title it will have placed the property beyond its control to use it for public school purposes, and will have forfeited the donation.

Whether it must actually conduct classes, or may use it as a school playground, athletic field, library or school warehouse, is not before us in this proceeding. All we are called upon to decide here is whether the School Board can part with title and use the proceeds generally for the public schools.

The fact that the donor was alive and did not object to the rental of the school buildings cannot be construed as an estoppel or consent to the sale and divestiture of title by the School Board, as the Board still had it within its power to resume normal school use.

For the reasons assigned, our original decree is set aside, the judgment of the District Court is reversed, and it is now adjudged and declared only, and no further, that the School Board cannot part with title to the lots to third persons for a cash consideration, even though such cash proceeds will be used generally for public school purposes.

Reversed and rendered.

REGAN, Judge

(dissenting).

I respectfully dissent from that part of the judgment which reversed our dismissal of the suit predicated on the fact that it was not an appropriate case for the invocation of declaratory relief.

The court inadvertently omitted to include in the panel which heard this rehearing the author of the original opinion and one other member of the court who participated therein. Consequently the views herein expressed may be of little judicial worth.

In any event, this dissent is written for whatever useful purpose it may serve to preserve the symmetry of the latest civil jurisprudence emanating from the Supreme Court interpretive of the Declaratory Judgments Act.

In our original opinion we stated that declaratory relief did not lie when the litigants were afforded an adequate procedural remedy provided by the Code of Practice of the jurisprudence, and this result was reached by meticulously examining the jurisprudence interpreting the Declaratory Judgments Act. Had plaintiff initiated an action in jactitation, the defendants’ answer thereto would have converted the cause into a petitory action, thus definitely and with precision posing the issue of ownership for the court to decide. In such an action the evidence adduced and issues argued would be identical.

To render a declaratory judgment in favor of one of the litigants now before the court necessarily involves ignoring the emphatic and final pronouncement of the supreme court to the effect that declaratory relief lies only where no other procedural remedy is available to the litigants.

Rehearing denied; REGAN, J., dissents. 
      
      . On July 5, 1955, the City of New Orleans transferred the property with which this litigation is concerned to the Orleans Parish School Board, pursuant to the requirements of Article IV, Section 12 of the Constitution of 1921, LSA. When the donation was made in the year of 1912, the City of New Orleans administered properties used for public school purposes.
     
      
      . LSA-R.S. 13:4231 et seq.
     
      
      . The right to determine on its own motion whether a suit for a declaratory judgment is properly one for such relief applied to appeal as well as nisi prius tribunals, the broad discretionary powers conferred by LSA-R.S. 13:4231 being vested in all courts of record acting within their respective jurisdictions. See also LSA-R.S. 13:4236.
     
      
      . Orleans Parish School Board v. City of New Orleans, 1959, 238 La. 748, 116 So.2d 509, 511.
     
      
      . It now appears that legislative intervention is necessary' if the problem created is to be corrected, that is, by amending the Declaratory Judgments Act to provide that the existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate. The rule as it now stands is objectionable because it imposes an unnecessary hardship both upon the litigants and the courts, who, in this instance, are compelled to try a case twice.
     
      
      . In Orleans Parish School Board v. City of New Orleans, 1959, 238 La. 748, 116 So.2d 509, 511, the court said:
      “The test to be employed in determining whether a case is properly one for declaratory relief has been clearly defined in our jurisprudence. It has been decided that the statute may not be invoked unless there is a justiciable controversy, * * *, and,, further, that use of the act is limited to matters which our ovm procedural lanv does not provide the party seehing relief with an adequate remedy. Burton v. Lester, 227 La. 347, 79 So.2d 333; see also Smith v. Smith, 230 La. 509, 89 So.2d 55 and Theodos v. Bossier City, 232 La. 1059, 95 So.2d 825.” (Emphasis added.)
     