
    No. 11,644.
    Zepherin Le Bleu et al. vs. North American Land and Timber Company et al.
    1. Where the husband after the death of his wife disposes in entirety of a particular'piece of community property each of the heirs of the wife has a right of separate action for the recovery of the undivided portion of the property belonging to him and which has been alienated. There is no obligation to make the other heirs parties.
    2. Vendees of community property sold by a husband after the death of his wife without authority^an not drive the heirs of the wife to an action against their father upon the minors’ mortgage. The property remaining in kind, they have the right to recover it in a petitory action. The recourse which minors have against their tutor’s property was granted in their interest, and not as an instrumentality by which their rights could be overridden. Neither tutors nor administrators are permitted as a right to charge themselves with the value of the property belonging to the minors or to successions, and thus shift ownership from the minors and the succession over to themselves.
    3. Where in the settlement made by a tutor with his children a particular piece of community property in which they have a right of ownership was accidentally, erroneously or intentionally omitted, no allusion is made to the same, the rights of ownership of the children in this property is not divested or affected by a receipt given by them ;as in full for the amount conveying to them as shown by the homologated account filed by their tutor, in which receipt it is consented that the evidence of the minors’ mortgage on the tutor’s property be erased. The account and the judgment of homologation extended only to the property and moneys therein covered.
    The mortgage did not cover rights of ownership in property remaining in kind at the end of the tutorship,jof which ownership the minors had not been legally divested.
    
      i. A document signed by the Registrar of the State Land Office certified to by him to be a correct copy of the record of a patent which issued from that office, is admissible in evidence to show the date of the sale of the land by the State.
    
      5. An exception to the rule requiring proof by the subscribing witnesses to an act sows seingprivé is admitted where the instrument is not directly in issue, but comes incidentally in question in coursejof the trial, in which case the execution may be proved by any competent testimony without calling the subscribing witnesses.
    6. Where defendant in a petitory action who has been in the exclusive possession of certain property reconvenes directly against a plaintiff, who seeks simply to be recognized as a joint owner with him in the property for the price of the improvements, which he claims ito have been placed on the property whilst having such possession, he is correctly remitted for the ascertainment of his rights to an action of partition between the joint owners.
    APPEAL from the Twelfth District Oourt, Parish of Oalcasieu. Fournet, J.
    
    Marie Victoria Verret, wife of Alphonse Amédé Oorbelle, to whom he was married in the parish of Oalcasieu in 1867, died on the 4th October, 1888, leaving as her heirs nine minor children, issue of this marriage.
    Two of these children, one a son the other a daughter, died after their mother without descendants and intestate,
    The succession of the wife was only opened in 1888, at which time the father was appointed and qualified as natural tutor of his children after an inventory had been taken of the property of the community between Oorbelle and his wife. This inventory ‘Showed assets real and personal to the amount of one thousand and five dollars.
    Upon the application of the father the minors’ interest in this property was adjudicated to him at the price of estimation, and upon his petition he was permitted, upon the recommendation of a family meeting, duly homologated, to secure the interest of his wards by giving a special mortgage upon the N. % of the ¡3. W. 1-4 of Sec. 25, T. 9 S., R. 8 W., and east part of lot 4 of same section, containing twenty acres, said two tracts of land containing in all one hundred acres, with the buildings and improvements thereon, in lieu of the general mortgage resting on his property to secure the faithful administration of his duty as tutor.
    In his petition praying to be allowed to give this special mortgage, he declared that the succession owed no debts.
    The tutor filed an account of his tutorship, in which he set down as the assets of the community the price of the same property which figured in the inventory.
    
      This amount he divided by two, placing one-half, orjfive hundred and two dollars and fifty cents, as the wife’s share in this community property. He then charged the minors with twenty-two dollars and fifty cents as their share of cost of inventory and other items of law charges, and declared four hundred and eighty dollars to be the net amount of the wife’s succession. Stating that the heirs of the wife were nine in number- — eight minors, and one minor (Marie Alvina) emancipated by marriage to Zepherin LeBleu, he fixed the share of each heir at fifty-three dollars and thirty-three cents.
    This account was homologated contradictorily with the under-tutor of the minors, and Mrs. Marie Alvina LeBleu, the married heir.
    The latter gave a receipt thereafter to her tutor in full of her share in the succession of her mother, as set forth in the account filed. Declaring therein that her right of mortgage on the property of her father as natural tutor was entirely satisfied, she authorized him to use the receipt as authority for demanding the cancellation and erasure of any mortgage which might be on record, springing from her rights of inheritance from her mother (fixed in said tutor’s account at fifty-three dollars and thirty-three cents).
    The four plaintiffs in the present suit, three of whom claim as heirs of their mother, Marie Victoria Gorbelle, and of their deceased brother and sister, and the fourth as the vendee of Ophelia Corbelle (one of the nine children aforementioned, issue of the marriage of Amédé Corbelle and wife) of a one-seventh interest in the property which forms the subject of the present litigation, claim that'during the existence of the community of acquets and gains, between Amédé Gorbelle and his wife, Corbelle purchased from the State of Louisiana (obtaining a patent for the same at the time) the north half of section six, township ten south, range seven west, Louisiana meridian. That this property fell into the community. That after the death of his wife, and before the succession was opened in court, Amédé Corbelle, ignoring entirely any interest of the heirs of Mrs. Corbelle in that property, sold the same- by three private acts to the defendant company, and that it has now and has always had possession thereof illegally and in bad faith; and that it is accountable for rent therefor; that the action of their father in disposing of the property in its entirety was without right or authority, and that the rights of the heirs of his wife therein have not been divested. They ayer that their father is an absentee living in the State of Texás.
    
      The prayer is that judgment be decreed in favor of petitioners, annulling said sales in part, and decreeing petitioners to be the owners of seventeen sixty-thirds of said lands, and for further judgment for seventeen sixty-thirds of four hundred dollars, improvements destroyed or removed from the land, and judgment against said defendant company for seventeen sixty-thirds of fifty-four hundred dollars rent for the use and benefit of said land during nine years from 1885, also for seventeen sixty-thirds of six hundred dollars per year for rent from judicial demand.
    The defendant company excepted that, as shown by the petition, all the parties having an interest in the subject matter, and result of this suit had not been made parties to it. The exception was overruled and defendant then filed an answer containing in itself several exceptions which it declares it pleaded in bar of the action. These were: (1) That Amédé Oorbelle, executed August 25, 1888, by notarial act of record, in the office of the clerk of court, ex officio recorder, etc., in the book of mortgages, the special mortgage referred to in plaintiff’s petitions, for the purpose of securing the payment of any rights or claims plaintiffs may have had or might have against said succession, and the said special mortgage being still in force, and none of the plaintiffs having ever sought to foreclose' said special mortgage, the plaintiffs herein have no right of action against respondent.
    2. In bar of the demand of Marie Oorbelle, wife of Zepherin LeBleu, it is pleaded that on or about August 21, 1888, she was paid by Amédé Oorbelle fifty-three dollars and thirty-three cents, in full of her alleged share in said succession, and, being thereby authorized by her husband, receipted therefor in full as aforesaid, and, therefore, she and her husband are estopped from asserting or prosecuting their demand herein, and have no right of action against respondent.
    The company in separate answer pleaded first the general issue. Further it denied specially, that the property ever belonged to the community named in plaintiff ’s petition, or that its own agent knew that it was claimed to belong to said alleged community, and averred that it bought the property in good faith by titles fully warranted in form, and translative of said property, and of the defect thereof, if any existed, or continued to exist, it and its trustees and agent and general manager, Watkins, were ignorant. That when it purchased said property it was of very little value, being very low, wet and swampy lands, but that since its purchase the company had, at great labor and expense, and in absolute good faith, placed improvements thereon to the value, at the institution of the present suit, and at the date of the answer, of not less than twenty-five thousand eight hundred and sixty-nine dollars and seventy cents, the items as to which it specially set up. That it had in good faith paid the taxes on it from 1886 to 1898, and would have to pay the taxes of 1894 thereon when they become due, which taxes as to amounts and dates it specially set out.
    The company averred that it purchased the property from Amédé Corbelle with full warranty of title, and that it was entitled to call its said vendor in warranty to defend respondent’s titles to said property in controversy, and to defend it in this suit.
    The District Court rendered judgment in favor of the plaintiffs, and against the North American Land and Timber Company, setting aside partially as prayed for by the plaintiffs the three sales made by Amédé Corbelle to the company referred to in plaintiff’s pleadings, and recognizing and decreeing each of the plaintiffs to own an undivided ninth of one undivided half, and of one-seventh of three-fourths of two-ninths of one-half of the property in litigation herein, making each of the plaintiffs undivided owner of seventeen two hundred and fifty-two parts of the property in litigation herein, the court recognizing and decreeing the property to have belonged to the community between Amédé Corbelle and wife. The court further decreed that all claims on the part of the plaintiffs in this suit for rent, revenues and values of improvements originally on said land, and all reconventional demands on the part of defendant — the North American Land and Timber Company — for improvements, fruit trees and other ameliorations to said property are rejected as of non-suit, reserving to the respective parties the right to present said demands in suit for partition, or other proper proceedings. It further rendered judgment in favor of the North American Land and Timber Company against each of the plaintiff’s proportionally for repayment to it of the taxes which it had paid on the property from 1885 to 1894. It further decreed and ordered that the demand in warranty by the North American Land and Timber Company be rejected.
    
      William F. Sohwing for Plaintiffs, Appellees.
    
      . Thomas T. Taylor and George H. and E. L. Wells for Defendants and Appellants.
   The opinion of the court was delivered by

Nicholls, O. J.

The first question before us is the action of the court in overruling defendant’s objection to the want of proper parties. If the allegations of plaintiffs be true, that the property in question belonged to the community, which was free from debt, and that after the death of the wife the father sold the entire property as his own by private acts, absolutely ignoring any interest therein of his children, each one of these children had the right separately and apart from the others to bring an action for the recovery of the undivided portion of the property belonging to him which had been attempted illegally to be conveyed. These parties might have all joined in one action, but they were under no legal obligation so to do. The act of the father was absolutely null and needed no setting aside. The judicial proceedings in reference to granting a special mortgage on the father’s property had no bearing upon the question of the ownership of this particular property, as [we will hereafter show. The exception was correctly overruled.

The position next contended for in this court by the defendant is that Ophelia Oorbelle (Mrs. John Guillory) having consented to the homologation of the account of tutorship rendered by her father, and received from him the amount going to her as shown thereby giving him the receipt she did, is estopped, as is her vendee, from bringing the present action. The property in question was not placed in the inventory nor in any manner dealt with in the account. The father acted with respect to it as his separate property dehors the succession and the community. If Mrs. Guillory had an absolute vested right of ownership in the property at her mother’s death, that interest was not divested by the fact that in the enumeration of the assets of the community this particular asset was accidentally and erroneously or intentionally left out. The account and its homologation extended only to the property and moneys therein covered. The receipt itself shows on its face that it had reference to those and nothing more. The acknowledgment of Mrs. Guillory that all her rights under the special mortgage had been satisfied and extinguished, and her consent that the inscription of the mortgage in the records so far as she was concerned should be erased, could have been executed and the mortgage erased and extinguished without in the slightest degree, as matters stand, affecting his rights in the property. The evident theory of the defence is that because a mortgage has been given by a tutor to secure the fidelity of his trust to those in whose favor it is given, the minors are necessarily driven to an action upon the mortgage to secure their rights in respect to property of theirs with which he has illegally dealt while tutor. That although property belonging to the minors which has been illegally and unwarrantably sold by him for his own benefit still exists in kind, the parties holding the property so illegally disposed' of can successfully resist the bringing of a petitory action by the owners for the recovery thereof. This contention is totally inadmissible. The law prohibits the sale of the immovable property belonging to minors unless for special reasons and under special conditions and formalities. Civil Code, Art. 389. It contemplates that generally the tutor should preserve that property in kind, and turn it over to the minor when he shall have arrived at his majority.

Neither tutors nor administrators are permitted as a right to charge themselves with the value of property belonging to minors or to successions, and by so doing shift the ownership of the same from the minors and the succession to themselves. To permit them to do so would be to recognize as a legal proposition that a party has the right to violate his legal obligations and legal duty to others, and leave them no redress save practically an action in damages.

In New Orleans vs. the Wardens of the Church of St. Louis, 11 An. 245, this court said, speaking of a somewhat similar pretension: “ This is a doctrine as unsound as it is novel. The violation of a contract may be, and very often is, the ground of an action sounding in damages against the party who has violated the contract, but the claim in such a case is for the reparation of a wrong, and is the very opposite of a recognition of a right to violate the contract.” The recourse which minors have upon the property of their tutors, through the legal mortgage which the law has created in their favor, is a remedy in their favor to be enforced by them for the protection of their rights, and not an instrumentality by which those rights could be overridden and broken down by the tutor.

So far from minors being forced (by reason of the illegal sale of their property by their tutor) to a personal action against him and to an action of mortgage on his property, when the property alienated still exists in kind, it would often, on the contrary, be properly their duty, in the interest of third parties as well as their own, to proceed to the recovery of the property disposed of. In the case at bar the tutor did not go even so far as to charge himself with the value of the land. He sold it without authority, and seems to have repudiated the idea of all liability in the premises. The special mortgage given by the father, under the circumstances of this case, has no bearing upon the issues involved therein. The right of ownership of the plaintiff in the land in litigation is separate and distinct from any indebtedness or liability by the tutor to his minor children. The exception based on a contrary idea was correctly overruled.

On the Merits.

The right of the plaintiffs to recover the joint interest claimed by them in the land described in their petition is unquestionable if they have supported their allegations by proof properly admitted by the court. Defendant denies that such proof has been made.

We think the certified copy of the patent issued by the State to Amédé Oorbelle was properly admitted for the purpose of showing the date of the acquisition of the property by him. This, the plaintiffs inform us, was the purpose of the document. Defendant admits having purchased the property in question from Amédé Oorbelle, and having it still in its possession. By the testimony of its own witness and former manager it has shown that the land was held by their vendor, under a patent which was exhibited to the manager at the time of the first sale, and placed in his possession when the third sale was closed. Both parties claim under the title acquired by Amédé Oorbelle. The plaintiffs do not deny that Oorbelle purchased this property in its entirety, nor do they deny that he could have legally sold in its entirety had not circumstances arising subsequently to its acquisition intervened and changed the legal situation. They simply maintain that after the title had been vested in Oorbelle, the title and ownership of the property had become, so to speak, split into two by the death of his wife — one undivided half remaining in the father,[the other vesting in the heirs of the wife, and that of their portion of this half they have not been divested. It is immaterial to both parties whether Oorbelle bought from the State or from any other person.j^There is nothing set up by either plaintiffs or defendant seeking to give to a title acquired from the State a character special or different from one from any other source. All parties rely upon the fact and validity of the title itself.

The issue is not as to the title conveyed to Corbelle, but as to the certain collateral facts which bear upon that title — first the date of the purchase, and next the date of the wife’s death, and the illegal divestiture of the plaintiffs’ rights.

The third section of Act No. 75 of 1880 makes it “ the duty of the Registrar of the Land Office to keep account of the sales of lands which have been donated to the State, in well-bound books, with the number of the certificate issued therefor, setting forth the section, parts of section, township and range, district and parish, to whom and when sold, and for what price * * * which books shall be preserved as official records.”

The law does not fix the form of the entries or of the record here required to be made, but simply declares the facts which must be placed of record. If the registrar places of record the entire patents which have issued, the record is just as legal as if mere memoranda or short notes had been taken and preserved of the data Which the law requires to have perpetuated. The record being official, the registrar was authorized to give a certified copy from it, which was legally admissible for the purpose it was introduced.

The objections raised by appellant to the testimony offered to prove up the act of sale sous seing privé from Mrs. Guillory to Zepherin LeBleu were correctly overruled. Mrs. Guillory is not a party to this suit, and the defendant does not hold under her. Plaintiffs do not sue either the defendant or Mrs. Guillory upon the instrument — quoad defendant the present ownership of the interest' which was inherited by Mrs. Guillory is only incidentally raised, and the parol testimony of a person who saw the parties and the attesting witnesses sign their names was properly received. Green-leaf, Yol. 1, par. 573b.

Defendant, after objecting to this testimony, went very far itself on cross-examination in the direction of proving up the fact which the document evidenced and the document itself.

Defendant claims that this paper does not purport to on its face convey any portion of the interest which Mrs. Guillory inherited from her deceased brother and sister. There was no necessity for her to state in the act the source or origin of her title; it was sufficient that she owned an interest in the property to the extent conveyed. How she owned it would be a matter of evidence should occasion require proof on that subject. That proof has been made in this case. The remarks.just made apply equally to plaintiff’s pleadings as to this interest. There was no necessity for plaintiff’to set out how the, interest conveyed to Zepherin LeBlue by Mrs. Guillory arose any more specifically than was done in the petition.

Defendant, in its objections to the admissibility of the certified copy mentioned of the patent, urged that the copy was inadmissible until the identity of the Amédé Oorbelle therein named with the Amédé Oorbelle under whom plaintiff’s claim was established. The objection went to the effect of the instrument, not to its admissibility. On the question itself of identity we have not the slightest doubt. The presumption arising from identity of name is fortified by all the facts in the case.

Defendant reserved a bill to the ruling of the District Court refusing to admit the testimony offered by it to prove the value of the improvements which it alleges it placed on the property while in exclusive. possession of the same and remitting the consideration of that question to future actions.

The effect of the judgment rendered by us is to recognize the defendant as a joint owner of the property with the plaintiffs. The defendant occupying that position sues the plaintiffs in reconvention directly for the improvements. The District Court held correctly that whatever claim defendant may have against plaintiffs as arising from the improvements should be urged in another form of action.

Defendant complains of the judgment as between itself and its warrantor to the extent that it did not in terms reserve it a right of direct personal action in warranty against the latter. We think that this reservation x’esulted as the necessax’y consequence of the pleadings and the rulings of the court in respect to the warrantor. The District Court (rightly or wrongly) upon the exception of the curator ad hoc dismissed as issues in the case and from the consideration of the court all moneyed demands against the warrantor on the ground that he was an absentee and could be brought into court only for the adjudication of the question of title. He was held in court exclusively for that purpose, and therefore all personal claims between defendant and the warrantor remained open for future action. There can be no objection, however, to making the judgment so declare in express terms. We are of opinion that the judgment appealed from was sustained by the law and the evidence.

Eor the reasons herein assigned it is hereby ordered, adjudged and decreed that the judgment appealed from be and the same is hereby affirmed with costs in both courts — the right of the defendant, the North American Land and Timber Company, to proceed by direct action in warranty against its vendor, Amédé Oorbelle, being hereby expressly reserved.  