
    (92 South. 325)
    No. 24717.
    Succession of CZARNOWSKI.
    (April 24, 1922.
    Rehearing Denied by Division B June 1, 1922.)
    
      (Syllabus by Editorial Staff.)
    
    1. Partition &wkey;>89 — Evidence held to show heirs’ occupancy of only part of house.
    In a proceeding between heirs to partition property, the preponderance of the evidence held to show, relative to liability for rent, that one of the heirs did not occupy the whole, but only half, of a house suitable for occupancy by two families.
    2. Partition &wkey;j73- — Judgment held not to bar claim for expanses on property collated.
    In a partition proceeding between heirs, who collated land received from the decedent by donation by taking less, a judgment decreeing partition, reciting that the parties collated by taking less, and' ordering that the properties donated be appraised as of the date of decedent’s death, was not res judicata as to the right of the heirs to claim from their coheirs, under Civ. Code, art. 1256, expenses in improving the lands donated in proportion to the increase of value, .and this claim could be made before the notary making the partition.
    3. Partition <&wkey;73 — Recital in judgment as to collation not an adjudication.
    In a partition proceeding between heirs, a recitation in the judgment that .the parties chose to collate properties donated to them by taking less was not an adjudication of any issue.
    4. Partition &wkey;>30 — Properties collated to be appraised as of date of decedent’s death.
    In a partition proceeding between heirs, where the parties elected to collate real estate donated them by taking less, the properties would be appraised as of the date of the decedent’s death.
    5. Partition t&wkey;l2(l), 78 — Cemetery lot held to be divided by line from front to back.
    A cemetery lot owned by a succession should not be sealed, but divided between the heirs, and where it was composed of four burying lots, each three by six feet, a division from front to back giving a frontage to each, rather than from side to side, should be made.
    6. Partition &wkey;>86 — Heir held bound to bear expense of repairs on property occupied free from rent.
    An heir who occupied a house of the succession for two years free of rent should bear the expense of repairing the furnace and wires.
    7. Partition <&wkey;87 — Repiairs for joint account of heirs should be jointly paid.
    Expenses for light and water and for repairs to a stove during the joint occupancy of property by heirs, being for the joint account, should be jointly paid.
    8. Partition <&wkey;II4(3) — Auctioneer allowed compensation for warehouse rent, keeper’s charges, plans, etc.
    The auctioneer selling property in a partition proceeding between heirs was entitled to be compensated for warehouse rent, keeper’s charges, watchman’s services, labor in arranging, letting, selling, and delivering movables at.the sheriff’s warehouse, and for plans, all of which were necessary and inured to the benefit of the estate.
    9. Partition <&wkey;>II4(i) — Succession entitled to benefit of discount allowed auctioneer.
    Where the auctioneer in a partition proceeding between heirs was allowed a discount by the newspaper in which the property was advertised, the deduction should go to the benefit of the succession.
    10. Partition &wkey;>35 — Sheriff held entitled only to commission of 2¡/2 per cent, under new statute.
    Code Prac. art. 283, providing that the sheriff sequestering and administering property shall receive a just compensation to be determined by the court, is superseded by Act No. 136 of 1880, § 23, under which the civil sheriff for the parish of Orleans sequestering property in a partition proceeding was entitled to receive only 2% per cent, on any moneys collected by him as his commission.
    11. Partition <&wkey;>ll4(4) — Ex parte order authorizing sheriff to employ counsel not binding.
    An ex parte order, rendered in a partition suit, authorizing the sheriff administering the property under a writ of sequestration to employ counsel, was not binding on the parties interested.
    12. Partition &wkey;> 114(4) — Sheriff not entitled to compensation for counsel.
    A sheriff administering property judicially sequestered in a partition suit was not entitled to retain counsel, especially where the services were rendered by the counsel under a contract with the sheriff by which compensation was to be paid out of the emoluments of the office.
    On Application for Rehearing.
    13. Partition <&wkey;86 — Heir occupying house sequestered not liable for rent.
    Where, in a partition proceeding between heirs, the sheriff was ordered to seize the property under a writ of sequestration, whereupon the grandchildren, occupying part of the premises, abandoned them and surrendered the key to the sheriff, and a son occupying another part of the premises continued such occupancy without molestation from the sheriff, he did not thereby become liable for the rent of the house.
    14. Appeal and error <&wkey;832(l), 1185 — Court’s reference to wrong statute not ground for rehearing or amendment.
    Where a partition proceeding was remanded, for adjustment of claims for alleged enhanced value of properties collated, the court’s reference to the wrong article of the Code as gov-erning such claims does not require an amendment of the decree or the grant of a rehearing.
    15. Partition <&wkey;l 14(3) — Notary’s fees governed by fee bill.
    In a partition proceeding, the judge in allowing a fee to the notary public for making the partition and making an inventory of the contents of a trunk should have been governed by the fee bill.
    Appeal from Civil District Court, Parish •of Orleans; Ered. D. King, Judge.
    Proceedings to partition property of the succession of Mrs. Anna Caroline Czarnowski, .widow of Peter St. Amand. Prom the .judgment, the parties appeal.
    Judgment set aside and case remanded in part, and amended and affirmed in part.
    J. Marshall Quintero and E. Howard McCaleb, both of New Orleans, for appellant ■Otto Berger.
    W. O. Hart, of New Orleans, for appellant Louis Knop, Late Civil Sheriff for Parish of Orleans.
    Prank W. Hart, of New Orleans, for appellant W. O. 1-Iart.
    Ered G. Veith and Wm. Winans Wall, both •of New Orleans, for appellants Peter St. Amand Young and Miss Charlotte A. Young.
    By Division A, composed of Chief Justice PROVOSTY and Justices OVERTON and LECHE.
   PROVOSTY, C. J.

The decedent died in September, 1917, leaving as her heirs a son, ■Otto Berger, and two grandchildren, Peter St. Amand and Charlotte A. Young. The grandchildren lived with her at her residence •on Napoleon avenue. An inventory was made of the property of the succession, and the said heirs were sent into possession. They had an understanding at first that Peter St. Amand should collect the rents accruing from the leases of the numerous pieces of real estate belonging to the succession, but Otto Berger soon became dissatisfied with this arrangement, and caused these leases to be judicially sequestered; and thereafter the sheriff collected the rents. Beginning at a time not fixed in the record, Otto Berger occupied one room in this Napoleon avenue house. In June, 1918, he moved into the house with his family, and occupied one-half, or one side, of it; the house having a central hall from front to back, and being suitable for occupancy by two families. Miss Young objecting to this joint tenancy, Berger obtained an injunction to restrain her from interfering with him in his side of the house. Shortly thereafter she and her brother vacated the house. This they did on September 9, 1918. The injunction had been served one month previously, on July 3, 1918. Berger continued his occupancy until the house was sold in the course of a judicial partition. At this partition the heirs collated by taking less certain real estate which the decedent had donated to them. On this real estate they had made improvements at their own expense. When the notary came to make the partition, dispute arose on a number of points, for the settlement of which the notary referred the parties to the courts. Dispute arose also over the bill of the sheriff for his services as custodian of the sequestered property, and the bill of his attorney; and over the bill of the auctioneer. Erom the judgment of the trial court on these disputes the present appeal has been taken.

1. The Youngs claim that Berger occupied, not half, but the whole Napoleon avenue house; and that he should therefore pay rent for one-half of the house. Mr. and Mrs. Berger testify positively that they occupied only half; and the only evidence against this is the statement of the Youngs that in passing by the house they could see the windows open on both sides and the entire parterre kept up. The preponderance of the evidence is against them. And so the trial judge found. •

2. The Youngs claim $900 and Berger $500 for the increased value resulting to the real estate collated by them from the improvements put by them respectively upon the properties at their own expense before the. death of the decedent. The trial court held that these claims were barred by the judgment decreeing the partition. We do not think so. The only issue before the court in this partition proceeding was as to whether these properties should be collated. That issue being decided, all else followed as mere matters of legal consequence. The parties were free to collate by returning the properties to the succession, or by taking less. They chose the latter, and the court in its judgment so recited. This recitation, however, was a mere recitation. It was not the adjudicating of an issue. The parties having elected to take less, the consequence followed that the properties would have to be appraised as of the. date of the death of the decedent, and the court ordered this to be done. Thereby the court did not pass upon any issue. This left the donees free to claim from their “coheirs the expenses which have improved the estate, in proportion to the increase of value which it has received thereby.” C. C. 1256. The time to make this claim was when the partition came to be made before the notary, and this was the time when these parties reciprocally presented their said claims. By sustaining the plea of res judicata the trial court precluded the introduction of evidence for proving the claims. For the purpose of admitting this evidence the case will have to be remanded.

3. The succession owns a cemetery lot composed of four burying lots of 3x6 feet. The question is whether this lot shall be sealed; or, if partitioned, whether the dividing .line shall run from front to back, so as to give a frontage to each, or from side to side. We know of no authority for sealing this lot, which is the joint property of these heirs. We agree with the trial court that a division by a line from front to back is the fairer.

4. Berger had sole possession of the Napoleon avenue house from September, 1918, to September, 1920. At some date not fixed during these two years he caused repairs to be made to the hot air furnace, and claims the cost of same, $78.97. They consisted of two new smokestacks, $35; new grate, $16.-12; and labor. The testimony leaves doubtful whether this furnace was not in good shape when he took charge. As he occupied the house during two years free of rent, he should, we think, bear this expense. The trial court erred, therefore, in allowing this claim.

5. And we say the same of his bill of $3.75, for repairs to wires in attic.

6. On the other hand, the $11.10 paid by Peter Young for light and water, and repair to stove, during the joint occupancy, was for joint account, and should therefore be jointly paid. It was allowed by the trial court.

7. The evidence shows that the two electric fans claimed by the Youngs belong to them, and did not belong to the decedent. So thought the trial court.

8. And we say the same of the Holbrook china set.

9. The $200 claim against Berger for pictures, etc., sold by him, is allowed for $10.50, the amount the things were worth and sold for.

10. The following items of the auctioneer’s bill are objected to:

(a) The item of $52.50, being for warehouse rent, keeper’s charges, and watchman’s service.

(b) The item $35, labor of arranging, letting, selling, and delivering .movables at sheriff’s warehouse.

(c) The item $740.20, advertising movable and immovable property as being excessive.

(d) The item $130.40 for plans.

We know of no law which requires an auctioneer to render gratis the services mentioned in a, b, and d. They were necessary and inured to the benefit of the estate; therefore they were properly allowed by the trial court.

On item c the newspaper allowed the auctioneer a discount of one-third, or $246.73. This deduction should have gone to the benefit of the succession. Succ. of Cordevoille, 24 La. Ann. 321; Friedrichs v. Friedrichs, 126 La. 705, 52 South. 993. The trial court erred in not so holding.

11. On the sheriff’s bill and that of his counsel the court adopts the views of the learned trial judge, which are as follows:

“4-A. The bill of the civil sheriff for $3,845.-65.
“During the process of the suit for partition, a writ of sequestration was issued in this matter, directing the civil sheriff to take possession of all the property belonging to the estate, and which was sought to be partitioned.
“Under this writ of sequestration, the sheriff took possession of all the property of this estate, collected the rents, and administered same. He now claims for said services the sum of $3,345.65.
“Counsel for the civil sheriff refers the court to article 283 of the Code of Practice. That article states that when the sheriff sequesters the property and administers it, he will be entitled to receive a just compensation for his administration, to be determined by the court; same to be paid him out of the proceeds of the property sequestered, if judgment be given in favor of plaintiff.
“This article of the Code of Practice is superseded by Act 136 of 1880, § 23, which reads that the fees of the civil sheriff for the parish of Orleans shall be as follows; and no fee or charge shall be collected by him for any services not specially provided for in this section. That section provided that he shall receive a commission on sales of property made of 2% per cent., and for commission on moneys realized in mesne or final process the same rates as in case of sales. Therefore the civil sheriff is entitled to receive as his commission 2% per cent, on any moneys collected by him.
“Counsel for the sheriff has referred the court to the case of Jennings v. Houssiere, 118 La. 262 [42 South. 930]. This case has no application for the reason that the legality of the charge was not at issue.
“The opinion reads that through counsel it was consented to leave the decision of the fees due the sheriff, as receiver, to be fixed by the court. In accordance with its estimate ,of the value of the sheriff’s labors and responsibilities, and as those labors had been rendered under the eyes, and to a considerable extent by the direction, of the court, it was, by agreement, determined that there was no necessity to take testimony to establish what his labors and responsibilities had been.
“The court goes on further to say that the plaintiffs alleged in their answer in the district court that the sheriff had no right to make such charges; that after the answer had been filed, however, they consented to the statement of facts before mentioned.
“So the only matter before the court was merely to fix the fees of the sheriff, not in accordance with the statutes, but in accordance with the agreement of parties, and the legality of the charge was never at issue.
“The court therefore concludes that the only charge that the. sheriff is entitled to make is 2% per cent, on the amounts received by him during his administration under the writ of sequestration.
“4-B. The bill of W. O. Hart, Esq., attorney for civil sheriff, is for services rendered by him to the civil sheriff whilst administering the property which had been judicially sequestered.
“An order was rendered in this matter, authorizing the sheriff to employ counsel. The said order was rendered ex parte, and therefore not binding on the parties interested.
“The evidence in this case shows that Mr. Hart was retained by the civil sheriff, as attorney, under a contract by which Mr. Hart binds and obligates himself to render to the civil sheriff all legal services necessary to the sheriff in the administration of his office.
“The court finds no authority, in law or other-wise, for the sheriff to retain counsel in any seizure that may be made, and furthermore, as stated above, his services were rendered under a contract with the civil sheriff for which compensation is to be paid for out of the emoluments of his office.”

The judgment appealed from is therefore set aside in so far as concerns the claims of the heirs for increased value of the properties collated, and the case is remahded for the purpose of trial on these claims; and is also set aside in so far as the claims of Otto Berger for $78.97 and $3.75 for expenses incurred on Napoleon avenue house are concerned ; and the said claims are now denied and rejected; and said judgment is also set aside in so far as it allowed in full the item of $740.20 of the auctioneer’s bill, and is now amended so as to reduce the said item to $493.47, and except as thus set aside and amended the said judgment is affirmed. The cost of this appeal to be paid one-half by the civil sheriff, Louis ICnop, and one-fourth by Otto Berger, and one-eighth each by Charlotte Young and Peter Young.

On Application for Rehearing.

By Division B, composed of Justices O’NIELL, LAND, and BAKER.

PER CURIAM.

The two grandchildren of the deceased ask for a rehearing on the claim against Otto Berger for rent of the house on Napoleon avenue. They direct our attention to the fact that the sheriff was ordered to seize the property under a writ of judicial sequestration. Our opinion is that that fact does not make Otto Berger liable for the rent of the whole house. He only occupied half of it, and the two grandchildren of the deceased occupied the other half. As soon as the writ issued, the grandchildren surrendered the key to the sheriff and abandoned the premises. Otto Berger continued to occupy half of the house, and was not molested by the sheriff. Perhaps the grandchildren would not have been molested by the sheriff if they had continued to occupy the other half of the house. A rehearing on that claim is denied.

Otto Berger, in an application for a rehearing or, in the alternative, for a correction of the decree, directs our attention to the statement or intimation in the original opinion of this court that the claims and counterclaims, of $900 and $500, respectively, for alleged enhanced value of the properties received by donations, which claims are to be adjusted in the collation proceedings, are governed by the provisions of article 1256 of the Civil Code. It is said that the deductions and reimbursements claimed are governed by the provisions of article 1269 of the Code. As there is nothing in the decree, remanding the case, that restricts the judge of the district court to the' provisions of article 1256 of the Code, there is no necessity either for an amendment of the decree or for the granting of a rehearing. What was said by the author of the opinion, regarding the application of article 1256, was not essentia! to the decree remanding the case for a determination of that issue.

All parties hereto, in their applications for rehearing, call our attention to the fact that the members of Section A of the court overlooked the opposition to the fees allowed the notary public for making the partition of the estate and for making an inventory of the contents of a trunk. The notary did not demand any particular amount for his services, but deferred to the judgment of the civil district court. No evidence was offered regarding the value of the services. The judge allowed the notary a fee of $800 for making the act of partition and a fee of $25 for making the inventory of the contents of the trunk. The complaint of the. heirs of the deceased is that the judge should have been governed by the fee bill, in fixing the notary’s fees,. The complaint is well founded. The decree of this court is therefore amended by setting aside the decree fixing the fees of the notary, and by directing the judge of the civil district court to fix the fees according to the fee bill. The applications for rehearing are therefore denied.  