Harvin v. Blackman

Syllabus. 1. If an appellee has, in point of fact, placed the record in such shape in the District Court as would entitle him, in case of an appeal by his opponent, to maintain by the record the judgment in his favor, it is the duty of appellant to place the record before the court on appeal in the same condition, but it is no part of his duty to come to appellee’s assistance and make out a proper record for him, if he, through negligence, has failed to do so himself. ■2. An appellant is entitled, acting in his own interests, to have a statement of facts made out, but he is not called upon to do so In the Interest of the appellee. 3. The district judge cannot be called upon to make out a statement of facts in a case after an appeal has been perfected therein, either by motion in the District Court or certiorari from the Supreme Court. 1. Plaintiff cannot be divested of the ownership of real estate worth four thousand dollars by the verbal admission and conclusion of law of an attorney at law, that a plea of estoppel filed by the defendant is well . founded, without any evidence in the record back of the admission. ,¡ S. Courts have frequently declared that a lessee is estopped from contesting the lessor’s title, while he holds possession under the lease, but this is sul jcct to exceptions. If the lease itself was the result of force or violence, the facts connected with the same should be examined into. Estoppels are not favored in the law particularly when advanced in limine by way of exception. It is better that such pleas should be determined after trial and hearing upon the whole case. (Succession of Frances, 49 Ann. 1740.)

APPEAL from the Eleventh Judicial District, Parish of Bed Biver —Porter, J. The fact that the defendant died two days prior to the rendition by this court, on March 17*, A. D. 1902, of the judgment in this case, ■having been formally called to the attention of the court, and it appearing by papers filed that the widow of the deceased has been duly recognized by the court below as natural tutrix of the minor heirs of the ■defendant and has qualified as such, and it appearing further that the widow in her own riglhit and as tutrix aforesaid, and likewise the major heirs of the defendant, have come forward and made themselves by plea ■filed parties to this appeal in lieu and stead of the deceased defendant, the court orders the judgment aforesaid, rendered on the 17th' of March, A. D. 1902, to be set aside, and now hands down anew the same opinion ■and judgment as of this date as the opinion and judgment -of the court in the case, whidhi judgment or decree is as follows, to-wit: Statement of the Case.' The plaintiff alleged that on March 13th, 1893, he acquired from the •defendant, under private act duly recorded in the Parish of Bed Biver, for the price of twelve hundred and fifty dollars, certain real estate, which he described, containing two hundred acres, more or less, as shown by deed which Ihie declared he annexed and made part. That when he acquired said property, it was in the woods and had no improvements of any kind whatever on it, and that since the acquisition of said property he had cleared up and put in a high state of cultivation about one hundred and twenty acres of it, fenced it, built houses, outhouses, cisterns and tenant houses necessary for tibe successful operation of it as a farm, at his own expense, which improvements were well worth the sum of two thousand five hundred dollars. That he had fully paid and settled the purchase price of said land, as will more fully appear on the trial. That on January 9th, 1899, after he had fully paid for said place, or was prepared to and had offered to pay whatever amount might be due to said Blackman, the said Blackman sent for him to come to his house for the purpose of arranging any difference still existing between them, and that while in the said Blackman’s house, on this peaceable mission,, the said Blackman, with -threats and attempted violence, compelled petitioner ¡by force and against his will and consent, to sign a deed conveying the above described property back to said Blackman, which deed was recorded in Book “I” of conveyances, p. 14. That the aforesaid deed stipulates as a consideration for said sale the' sum of twelve hundred dollars cash, which sum was never paid, nor did petitioner at said time know what price, or that any price, was fixed in. the deed for the sale of said land, the same being executed against his will and consent. Tihiat said described property was well worth the sum of four thousand dollars, and that the sale from him to the said T. Blackman, of date January 9th, 1899, was null and void, for the reason that said sale was made under duress, as above set forth and against the will of petitioner and without his consent, and for the further reasons that there-was no consideration for said sale. He showed that by law he was entitled to have said sale of date January 9tbi, 1899, rescinded and revoked and set aside. That in the alternative, that in the event the court held that the-aforesaid deed from himself to T. Blackman, of date January 9th, 1899,. should not be rescinded, then, and in that event, he desired and was entitled to a judgment against the said T. Blackman in the full sum of twelve hundred dollars, with five per cent, interest thereon from January 9tb:, 1899, being amount stipulated in said deed as the consideration of said sale, which was in no manner paid or settled. That at ithe time he signed said deed to said Blackman, on January 9th, 1899, said Blackman threatened to take his life if he ever divulged' the fact of his hpving- signed said deed under duress, and that he had remained in fear of his life since said time. That said forced sale left him without means to prosecute a suit to-rescind th/e said sale, and that he, being an uneducated and unskilled colored man, had to depend upon hard manual labor to earn said means, at the same time having to support a large family, and that at the earliest possible moment he instituted this suit. In view of the premises, petitioner prays for service and citation hereof, and that after due proceedings had, he have judgment against the said Theophilus Blackman, revoking, rescinding and setting aside the ¡sale from himself to tibie said Blackman of date January 9th, 1899, and 'recorded in Book “I” of Conveyances, p. 14, of the property hereinbefore described, and that he be restored to the quiet possession thereof. But in the event the court refused to rescind said sale, then, in the .alternative, he prayed for judgment against the said Blackman in the .sum of twelve hundred dollars, with five per cent, per annum interest thereon, since January 9th, 1899, being the consideration stipulated in said deed which was not paid. He further prayed for all orders and decrees necessary, for costs, for .general and equitable relief. The petition was filed on November 5th, 1900. Defendant, without in any way answering the demand of the plaintiff, filed a plea of estoppel. He averred that he was the owner of the .property described in plaintiff’s petition; that for the first several years the plaintiff had leased the same from him and in January, 1899, he leased the same to plaintiff for the period of tlhtree years, that is for the years 1899, 1900 and 1901, for the price and sum of $300.00. per year for the years 1900 and 1901 and $165.00 for the year 1899, and that the said Marion Harvin executed his three notes in favor of the appearer for the said sum of $300.00 and $165.00, payable one each year; that the notes due for the rent of the years 1899 and 1900 have been paid and that he now holds the note for the rent of said land for the .year Í901, a copy of which was annexed to and made part hereof, and contract of lease for the year 1899 also annexed hereto and made a part hereof. That the said plaintiff, Marion Harvin, was in possession of the land described when this suit was brought, and was now in possession of said premises as the tenant of defendant and that as lessee and holding under this defendant, he was estopped from in any manner disputing ■and contesting defendant’s title to the said land and that Ms suit should be dismissed. In view 'of the premises he prayed that this plea of estoppel be filed and that same be maintained and the suit against him be dismissed, and for all orders necessary, and for costs and for general relief. The plea was tried and judgment was rendered by the District Court in favor of the .defendant and against the plaintiff, dismissing his demand at his costs. The- judgment was declared by the court to have 'been rendered “by reason of the law and the plea of estoppel filed." The plaintiff by petition applied for and obtained an order of appeal at chambers. He gave an appeal bond, which was approved on the 8th. of November, 1901. The transcript of appeal was filed in the Supreme Court on November 22, 1901, and on the same day the defendant moved to dismiss the-appeal in the following words: “The transcript is not complete, and does not show the evidence or admission on which the judgment of theDistriet Court was rendered. That he filed^in the District Court a plea of estoppel on the ground that the plaintiff held the property in controversy as his tenant under a lease contract, to which plea wereattacEed the rent notes of plaintiff in his favor, and plaintiff’s counsel admitted in open court that the facts set up in the plea were true, and. did not require the evidence or admission to ¡be taken down in writing; that the appellant had made no effort to have the record completed by gcttting a statement of facts from the opposing attorneys, nor from the-court, which statement of fact could have been easily obtained. That defendant himself had made application in open court to have the-record completed by filing a motion for same, a copy of which he annexed and made part -of (his motion to dismiss, which motion the district judge denied, to which ruling of the court appellee excepted and reserved a bill of exceptions; that the judge gave as his reason in the bill of exceptions for denying the motion, that an appeal had been granted- and a -bond for appeal filed, and he did not think he had any authority to grant any further orders or take any further proceedings in the case,. but that the counsel for plaintiff did admit in open court that the notes for rent of the defendant, annexed to the plea of estoppel, were genuine • and that the plea of estoppel was good; that he annexed a certified copy of the bill of exceptions and made the same part of his motion to dismiss and also copy of the minutes of the court, showing the filing of said minutes; that it was the duty of the appellant to complete the-record, and he not only (had failed to do so, but had refused to permit him, the appellee, to complete the same by having a statement of facts ■ placed therein.” In view of the premises he prayed that the appeal be-dismissed. In the bill of exceptions filed by appellee the district judge refused tv make out a statement of facts for the reasons stated, but added that “in-order to avoid delay in the event the Supreme Court should think differently, he would state that on the trial of the exception referred to-counsel for plaintiff in open court admitted that the notes annexed t> the exception and plea of estoppel were genuine and that the plea was good.” After this motion was filed plaintiff’s counsel consented and agreed that the statement of facts made by Judge C. V. Porter in the bill of exceptions of date November 14, 1901, a copy of which was annexed, should be filed in the record and that same go into the transcript as the-judge’s statement of facts in the case, as if made and included in the original transcript, agreeing that the court shall consider the statement of facts in the case as fully as if ordered to be filed on this certiorari being made peremptory. The explanation of this agreement is that the appellee had, after making a motion to dismiss, applied to this court for a certiorari addressed to the district judge directing him to make out a statement of facts in the case. • The clerk of the court certified that the record delivered by him contained a true and correct transcript of the proceedings had and documents filed with all the minutes of the court and all the evidence adduced in the case.