
    Mr. & Mrs. Sidney De Leon. -vs- A. J. Fabacher.
    No. 7854.
    Court of Appeal. Parish of Orleans.
    Dinkelspiel. J.
   Binkelsplel. J.

Plaintiffs, husband, and wif®, bring this suit against defendant alleging that one Tiburtio Sa Freire a non resident, cams to this City during the year 1918, meeting Crover C. Mouras, brother of one of plaintiffs, residing with them at their home íío. 2637 ht. Philipp ■Street.

That Se Freire falsely represented himself to líourds and to plaintiff.? as a man of good character and habits ds well as of means and social standing. That beleiving the representations made by the stranger, plaintiffs permitted him to ingreoihte himself with them, their family and friend3, and he boarded and lodged with them begining Kay 2nd. 1918.

That on or a’.out January 30th. 1S19, 3aid Ss Freire, as ne Was then known to plaintiffs, suddenly.departed from plaintiffs home being indebted to them for about '•ílSS.OO. board and lodging, and tnen and there, feloaio iously, did take, steal and carry away with him from plaintiffs home, embezzle and appropriate to his own benefit, valuable jewelery belonging to plaintiffs, namely two ladies solitaire diamond rings, taking them frote plaintiffs armoir, the Value of tx.e rings being $575.00., and then follows a description of the rings.

That immeadiately after the discovery of the di 3apg eat-inc of said stranger, that the rings, and also the ring of Kauras were found missing.

Plaintiffs instituted a search and notified the police with no results until they received information leading to the location of the fugitive in the otate- of California .'.here they wrote to him ?.nd received an answer making a confession of his theft and admitting x_.ax he nad disposed cf xi e articles , the rings, witn one A. J. Fabo.* O-'i-or, defendant, a keeper of a negro bar room at 10.35 ■braviar 'ornar of Rampart Ftreet. "..at t:.e> 'promptly pave ti.ia information to the polios and t-3 fi3trict íttornay, and aoout ti.e 17t'u. of April, ISIS, visitinj defendant, taay allege lie confessed receiving and oelnp in 0079333-ipn of tee jeweiery rsiej-yed to, cat claiming to „av3 bougnt team from "a Frsire.

Plaintiffs ter. aver t..at t..e, ?.re t..e sole owners of the rinps-in question wi.ici. were in tie unlawful possession of defendant, 9toler. by •'e Freire, ar.d by i.im disposed of to defendant, and who, althoup:-. fully informed of rlaintiff3 ownership, ha3 failed and refused to surrender -nd deliver tr.e two rir.pt to tnem, and ti.at i.is refusal and failure , aforesaid, is .vitneut lawful cause or ripp.t, and ..is possession of aur.e if not totally criminal, wa3 in cad faith under moat suspicious circumstances, out of his usual line of easiness and bears ti.e ear marks of fraud and colusión in order to defeat the rijntful owner3 of tr.e property in que91id,n. snd without detailing unnecessarily tie ct..er steps taker. i)y plaintiffs ir. t..is case to apprsu-und t..e fupaiive on account of ti.e coot to brir.p him hack freo, 'alifornia to foul siena, ti.ey ask for judjn int for ti.e unour-t of tneir claim and topetner .vit- tneir petition t..ey prayed for a writ of sequestration, pave bond and made t..e necessary affidavit, under the law, and ti.e writ vas issued.

refendar.t, first, in aroerinp to a rule for contempt for dlaobeyinj t.ie ordai-3 of "ourt in tie writ of sequestration by not producán•; t..e property, denied ail t..e allegations in t..e writ, but admitted t..at he did pure.-nse two certain dj.ai.ond rinps it pood imt,. ..avir.p no r.r.o.vleap t..at same were stolen, further t..at -e doe3 not t.-ink ti.at ti.e same cere stolen, but denies c..at 1.= ever attempt to conceal said furo..ass, ti.at ..e was in pood fait::, t..at paid a legitimate price for 3aid rings. Further answering defendant denies that same were stolen, on the contrary, the rings, as he believed then and now was the property of Sa Freire.

A rule taken to dissolve the sequestration was taken and the writ was dissolved. Subsequently the answer admits, after a general denial, the purchase of the two rings in question. He denies that plaintiffs were the owners or that they were stolen from them; denying further chat he never dii conceal the purchase, that they were bought in g good faith for a valid consideration being the full value, and prays for dismissal of the suit.

An agreement to try this case and the one No. 7853, of Mauras against the same defendant was made in the following terms:- " It is agreed that the testimony now being taken shall apply to both cases, they being against the same defendant."

Defendant, Fabacher, was placed on the 3tand under cross examination by plaintiffs and among other statements testified, that Sa-Fewire visited his bar room for about a week or ten days prior to his departure from th3 City of New Orleans; " that he looked like a negrc. to me; that he spoke english, and he offered to sell on one day one of the rings claimed by plaintiffs", which ring defendant took a pawn broker in this City and finding from him the value and adding to it the sum of -515.063. so that he could make §15.00. on the transaction he bought and paid for the ring in question. The next day the 3ame man came back to his saloon and went through the same thing with the other ring, and ascertaining the price from the dealer he made ^15.00. on this ring; in other words, he paid the man for the two rings $345.00. and sold them to .the -pawn broker for f-275.00. thus making a total of $30. on both transactions; denying that he ever bought a third ring belonging to Mouras, or that he ever 3aw more than the two rings in question.

The testimony of feúras, Vrs. Hary Kouras, Hr. and 'irs. Pidney re Leon together with Pa Friere's letter forming & ¿art of the testimony proves, Pa Friere had been a hoarder in the house of plaintiffs and a roomer there for a’oout a year or more; that he became intimate with each and every member of the family; that he frequented with them places of amusement, and that ha had absolute access and ■ the right, with the consent of plaintiffs, both husband and wife, also the mother and a brother, to go into any room of the establishment whenever it suited him, to do whatever he choose, that he had always behaved himself as a gentleman, that he Was more or less an intelligent man, speaking several lmguages, claiming to he a Brazilian from some family there of note with large means, having no occupation, in other words, a man of the world, * nothing to do and plenty to do it with"; and until he became a fugatlve from justice and under his own confession a thief, these people, plaintiffs and brother; in fact, the entire family , trusted in him implicitly , had every confidence in him and gave him entree, not only to their own house but introduced him to relatives»** and friends.

The defendant, on the other hand, only knew tnis man for a short period. He noticed when he entered his bar room that he wore several diamond rings on his fingers, and when eventually one of these rings wa3 offered to him on one occasion, not being a diamond merchant, he went to a man whose business was.to deal in diamonds and who understood their value,who fixed a price which he subsequently paid after the purchase by defendant from Ha Friere, so that defendant bad such right, in our opinion, to " this transaction as he did as plaintiffs and the rest of the family had in leaving their doors wide open and their armoirs unlocked and give this theif an opportunity 7,-í ich Us finally took in stealing these rings iron; plaintiffs .

"e, wit» this snort history of ti.s transaction tnere is ore question for our solution, that is, could defendant purchase from this thief property which he the t_isf had. stolen from plaintiffs'? And v;e answer that question in the negative, and «e are supported tap in thiB by the articles of the Civil Code,

Art. 33-50. Title of Depositor. Things Stolen.- "Re cannot require his. who made the deposit to prove that he was the owner of t,.e thing. Yet if he discovers ti-at the thing was stolen and who the owner of it i3, he must give him notice of tl.o deposit, requiring him tc claim within due time.

If the owner, having received due notice, neglects to claim the deposit, the despository is fully exonerated upon returning it tc the person from t/hom he received it", unduly Art. 5313. 11 A thing -JCKKKI received must be restored in

Art. 3w:53. ""'ale of a thing belonging to another is null,"

In 5 Court of Acpeal. p. 165. Hiddleston Kenner vs. Hasquale Corannuzza, the syllabus read: " The sale of a thing belonging to another is null and the thing cannot bo alienated pending the action so as to prejudice the right of the claimant."

Cyc. Vcl, 55. p. 361. G. "Property procured by wrongful or felonious acts.

IKSbSii " bona fide purchaser is not protected as against tne claim of the true owner where the eeller has obtained possession cf property by wrongful acts, if without any delivery by or consent on the part .of tne owner as where wsnee the goods obtained by ^trespass. The rule / has also been laid down that a bona fide purchaser is’ not protected where the vendor obtained the goods by means of a felony". Citing numerous authorities.

In this Court plaintiffs have prayed for an amendment of the judgment of the lower Court claimirng §575.00. as the walue of the property stolen. We cannot allow them this sum, but we must amend the judgment by allowing plaintiffs the same amount that defendant received from the pawn broker for the two rings in question which is the sum of §375.

It is therefore, ordered, adjudged and deoreed, that the judgment of the lower Court be amended, and that plaintiffs do now have judgment against defendant in the full sum of §375.00-, with interest from judicial demand. Defendant to pay costs of both Courts. .And as thus amended the judgment is affirmed.

-Judgment amended and Affirmed-  