Smith v. Wilson

A co-proprietor, in possession of lands owned in common, has no right in the absence, and without the express assent, of his co-proprietor, to make unnecessary improvements, e. g. building cabins, planting orchards, &c., and compel the absent owner to contribute therefor. If the expenditures made be such as it was lawful for one proprietor to make in the absence, and without the knowledge of, the other, then the liability of the latter is for an equal share of the expense, accompanied with an equal participation in the resulting benefit. The duty of the co-proprietor who is present and in actual possession,^ to take the same care of the property, as if it wholly his own.

from the Second District Court of Plaquemines. Rousseau, J. But the Court finds another objection to the proceeding, as it was a partnership between the parties, and to be settled as such; and one partner cannot sue another for any specific claim in relation to it, but there must be a general settlement of all partnership accounts. This is admitted to be the law in partnerships ; but there was no partnership between the co-proprietors here ; there was only a community of property, which does not constitute a partnership. This distinction is directly recognised by our Civil Code, Art. 2777. “A community of property does not of itself create a partnership, however the property may be acquired, whether by purchase, donation, accession, or prescription.” [See also Arts. 820, 1214. The same question was discussed fully in the Roman law, and decided in the same manner, and the jurisprudence has come down to us unvaried. [See Po-thier’s Pandects, lib. if, 2, 30; contrat de socUté, Nos. 181, 18T, 191; Domat, p. 1, lib. 2, tit. 5 ; § 2; No. 3 ; 6 N. S. 01G, Percy v. Millaudon. What were the duties of the co-proprietor, Smith, who had the actual possession of the common property — his co-proprietor being absent and having left no one to represent his interests ? They are laid down distinctly by Domat, p. 1, lib. 2, tit. 5, § 2, No. 2: to manage and take care of the common property, as he would of his own. Smith considered it his interest to put the plantation in a state of cultivation, and make a levee in front and rear of it; cut canals, ditches, make roads and fences, build houses, and particularly plant the whole in orange trees, as the most direct method of rendering the estate profitable. The capital invested in its purchase $3,000 in 1809, and the same sum in 1847, was idle ; for the place was, according to the evidence of all the witnesses, in a state of waste. Siaith acted in good faith when planting orange trees on the plantation, instead of cultivating it in rice, as some of the witnesses say would have been more advantageous ; though others express very strongly a contrary opinion, and prefer the planting of orange trees. He was bound only to act according to the best of his own judgment, and to manage the plantation as he would his own property. That he did so, cannot be doubted. [See Domat, p. 1, lib. 2, tit. 5, § 2, No. 2. The Court will also consider that the taxes on the plantation, amounting to $115 for the last year, have been paid regularly since 9th April, 1847, by Smith; the nine negroes which he hired from Bahan, [p. 34,] and the other laborers, [p. 37,] have also been paid for their services, and for those advances interest is due thereon by law. [Domat, p. 1, lib. 2, tit. 5, § 2, No. 4. By the Roman law, among necessary expenses, which the husband was required to make on the dotal effects of the wife, at his peril, were, “ moles in mare vel fluineu projectas”- — -levees. He was compensated, also, for such necessary works, as planting vines, taking care of trees, forming nurseries. “Vel si^vites propagaverit, vel arbores curaverit, vel seminaria, pro utilitate agri fecerit neccssarias, impensas fecisse videbitur. [Pand. lib. 25, tit. 1,1. 1-3. xlmong the useful expenses made by the husband for the same purpose, is enumerated the planting of trees” — Veluti si novelletum in fundo factum sit.” Ibid, 1. 0, Lib. 5, tit. 3, 1. 39. When the same improvements have been made by one co-proprietor on the common property, the other is bound, for stronger reasons, to reimburse his portion of their value, on the great principle that joint owners must contribute rateably to useful expenses incurred on the property by a joint owner having the management of it. 0 N. S. 616, Percy v. Millaudon. By these principles is a recovery sought in this action for the amount of one-half of the value of the ameliorations now existing on the plantation, and by which the common interests of the co-proprietors have been enhanced to the extent of $30,000. Story’s Equity, § 1289. As regards the claim of the State of Louisiana to the undivided moiety of the plantation, by escheat, in consequence of the supposed death of W. Wilson, without heirs, the plaintiffs have little to say. They deny, however, his death by an exception, peremptory in its nature, made to the intervention. The Stale cannot recover the property from the plaintiff until it shall have discharged the amount due for its preservation, expended by- Smith ; for there is a privilege on the land for such claim. [O. O. Arts. 3191, 3193-.] The whole amount of the claim, as stated, is, in fact, all for the preservation of the property. . But there is no proof of the death of W. Wilson, by witnesses, as required by law. 5 An. 265, Marcos v. Barcas. Plaintiff and defendant are joint owners, not partners, and our Code has specially provided, that a community of property does not of itself create a partnership; O. N. S. p. 616, Pereey v. Millaudon. In that case, Percy who owned one fourteenth of a sugar plantation, was present, he as well as Millaudon, had the control and management of said sugar plantation. Was the administration of Smith that of a- negotiorum gestor? It was that of an intermeddling trespasser. His management has not been such as to bring him within the purview of articles 2272, 2273, 2274, 2275, 2276, 2277 and 2278 of the Civil Code of La. Smith, is now in the shoes of Burney, in the case of Baillio v. Burney, et als., reported at page 317 of the 3d volume of Robinson’s Reports. He is a tresspasser. He has taken possession of a land to which he had an interest of one undivided half only, instead of provoking a division or partition. He has fallen clown the trees, sold the wood, appropriated the money himself and made the land less valuable thereby.