Opinion
No. 26295.
October 6, 1925. Rehearing Denied March 1, 1926. On Motion to Correct the Decree March 4, 1926.
Appeal from Civil District Court, Parish of Orleans; Mark M. Boatner, Judge.
Petitory action by Joseph Emmett Gahn against Mrs. Iska Brown, wife of Charles Kohlmeyer, wherein Dr. P.B. Salatich and others were called in warranty. Decree for defendant, and plaintiff appeals. Reversed and rendered.
Alexis Brian, of New Orleans, for appellant.
Edgar M. Cahn, of New Orleans, for appellee Brown.
Walter L. Gleason and D.V. Doussan, both of New Orleans, for appellee Salatich.
This is a petitory action for the recovery of real estate which belonged to the succession of Edward Cunningham, deceased, but which had been sold by persons claiming to be the sole heirs and legatee.
The petition alleges that plaintiff's mother was duly and legally adopted by Edward Cunningham and his wife, Eloise Leger, by notarial act passed before Julien Michel, a notary public, during the month of March, 1877, under the authority of a judgment of the second district court of the parish of Orleans, rendered and signed March 22, 1877, in No. 39344 of the docket of that court; that thereafter his mother resided in the house of her parents, by adoption, as their child; that she was reared and treated by them as such and was married from their residence; that his mother was married but once; that he is the sole surviving issue of that marriage: that his mother died September 7, 1890; that Eloise Leger, wife of Edward Cunningham, died intestate November 30, 1893, leaving no descendants other than petitioner; that on April 5, 1895, Edward Cunningham and Julia Elizabeth Grace entered into a marriage contract by notarial act passed before W.H. Seymour, notary, in which the contracting parties renounced the community of acquêts and gains and reserved to themselves the possession and management of their separate estates; that Julia Elizabeth Grace had no paraphernal funds or property when the said contract was executed and did not thereafter acquire either; that Edward Cunningham and Julia Elizabeth Grace were married April 18, 1895; that on April 14, 1898, Julia Elizabeth Grace, wife of Edward Cunningham, purchased, with money belonging to her husband, two lots of ground, with the improvements thereon, and the rights, ways, privileges, etc., thereto belonging, situated in the Sixth district of New Orleans in square No. 396, bounded by Pitt, Atlanta, Dufossat and Valmont streets, designated as lots Nos. 12 and 13, each measuring 32 feet 5 inches front on Dufossat street by a depth between parallel lines of 120 feet; that subsequently a decree of separation from bed and board was rendered between Julia Elizabeth Grace Cunningham and Edward Cunningham, which was followed by a final decree of divorce; that, pending the decree of divorce, Edward Cunningham and Julia Elizabeth Grace executed a contract of settlement in which Julia Elizabeth Grace renounced any and all rights she had or may have had in and to the said two lots Nos. 12 and 13 in square 396, Sixth district of New Orleans; that Edward Cunningham died, possessed of said property, on June 27, 1915; that his succession was opened by collateral relations, who contested among themselves the right to the administration of the estate; that, pending the appointment of an administrator, Julia Elizabeth Grace filed a petition alleging that deceased left a last will and testament in which she was named his universal legatee, and prayed for the probate thereof; that this will was probated, but it was attacked by the collateral relations; that, before the issues thus raised were adjudged, the court upon the joint application of Julia Grace Cunningham and one of the collateral relations of Edward Cunningham, deceased, appointed executors to administer the estate, and later, by agreement between all of the litigants, the property was sold, and the executors took possession of the proceeds thereof; that by subsequent transfers of this property the ostensible title to it became vested in the defendant, Mrs. Iska Brown, who, together with her husband, are in the actual physical possession of it and are holding it under a claim of full ownership thereof; that petitioner is the lawful owner of an undivided one-third interest in said property, as the forced heir of Edward Cunningham, deceased, and that petitioner's interest therein has never been divested.
To these pleadings defendant filed exceptions of no right or cause of action and later answered the suit. The answer is a denial of every allegation in the petition except that defendant is in possession of the property under a claim of full ownership thereof. Defendant alleges that she acquired the property with warranty from the New Orleans Homestead Association, who, likewise and on the same day, had acquired it from Dr. P.B. Salatich, and she calls Dr. Salatich in warranty, and prays for such judgment against him as might be rendered against her.
Warrantor answered the call in warranty; reserved to himself all exceptions and defenses pleaded by defendant; adopted defendant's answer as part of his answer; alleged his claim of title from the Eureka Homestead Society, through Mrs. Loretta Johnson, Miss Gladys C. Malter, and Dr. John R. Adams, his vendor; annexed as part of his answer the proceedings had in the succession of Edward Cunningham, deceased, and the judgment of this court therein, reported in 77 So. 506, 142 La. 702; alleged that, by reason of laches, plaintiff is estopped from the assertion of an interest in or a right to any part of the estate of Edward Cunningham, deceased; and he calls in warranty Mrs. Loretta Johnson, wife of Joseph Hellen and Joseph Hellen, Mrs. Elizabeth Grace, divorced wife of Edward Cunningham, John Louis Cunningham, Mrs. Mary Kehoe, widow of Edward Foley, and Mrs. Mary Cunningham, widow of Thomas Houston and now wife of William F. Brooks, and he prays for such judgment against said warrantors as may be rendered against him.
After answering as warrantor, P.B. Salatich filed a plea of prescription based upon the ground that suits for the reduction of excessive donations are prescribed by the lapse of five years.
The defendant filed a similar plea, but rested it upon the allegation that the suit was filed more than five years after plaintiff attained his majority.
The trial judge reserved his ruling on the pleas, heard the case on the merits, and thereafter sustained both pleas of prescription and dismissed the suit at plaintiff's cost. From this judgment plaintiff appealed. Defendant has answered the appeal, and prays for the affirmance of the judgment or for such judgment against her warrantor as may be rendered against her. It does not appear from the minutes that the exceptions filed by defendant and the estoppel pleaded in the answer of Dr. P.B. Salatich, warrantor, were passed upon in the lower court. The extracts from the minutes merely show that the exceptions were heard and submitted on Tuesday, November 15, 1921; the plea of prescription was heard and submitted June 29, 1923, and the judgment was signed in open court July 30, 1923.
There is no reference to the exceptions in either brief. We will therefore dismiss them from consideration with the statement that the averments of the petition allege a right and cause of action.
Defendant and warrantor rely upon their pleas of prescription, and the correctness of the lower court's ruling on those pleas is the only issue of importance in the case, because the record discloses that the averments in plaintiff's petition of his heirship and interest in the succession are established by abundant proof. Neither defendant nor warrantor challenges this proof; therefore it is not necessary to review it.
Plaintiff as the sole forced heir of his grandfather by adoption, Edward Cunningham, deceased, was, at the death of his grandfather, immediately seized of an undivided one-third interest in the estate.
"A succession is acquired by the legal heir, who is called by law to the inheritance, immediately after the death of the deceased person to whom he succeeds. * * *" Civil Code, art. 940; Schreiber v. Beer, 91 So. 149, 150 La. 676; Cox v. Von Ahlefeldt, 23 So. 959, 50 La. Ann. 1266.
With respect to universal legatees it is held that:
"Under the maxim, `Le mort saisit le vif,' embodied in articles * * * 942 of the Civil Code, the universal legatee is, in the absence of forced heirs, invested with the ownership and seizin of the universal legacy from the moment of the death of the testator. * * *" Tulane University v. Assessors, 40 So. 446, 115 La. 1025.
Plaintiff did not divest himself of the interest he inherited in his grandfather's succession; in fact, he did not know that he was the grandson of deceased, by adoption, and his forced heir, until August, 1921. Shortly after the death of Edward Cunningham, a sister of the deceased opened the succession by applying for the administration thereof. A brother of the deceased opposed this application. The universal legatee then presented the last will and testament of deceased, and prayed that it be probated. The probate followed and the court ordered the execution of the will. The collateral relations of the deceased attacked this order and the validity vel non of this will, and thereafter, on the joint application of the universal legatee and John L. Cunningham, a brother of the deceased, the court appointed these two persons executors, and the property of the succession passed to and remained in the possession of the executors until it was sold on March 9, 1917, by a notarial act, in which the universal legatee and all of the collateral relations of the deceased who had appeared in the succession proceedings joined.
The litigation growing out of the attack upon the validity of the will of the deceased was terminated by the judgment of this court rendered January 3, 1918. It was only then that the universal legatee was finally recognized as such and in that capacity was sent into possession of the estate. It is our opinion that the prescription of an action for the reduction of an excessive donation like the prescription acquirendi causa begins to run at the commencement of possession adverse to the owner. There are decisions of this court that the prescription mentioned begins to run at the date the will is probated and executed. As we read the law and the authorities, if there are no forced heirs the universal legatee is seized of the succession immediately upon the death of the testator, but if there be forced heirs the will must be probated and executed before prescription begins to run against the action by the forced heir for his legitime and the execution of the will is a putting in possession. This is true, because until that is done the universal legatee is not invested with the ownership and seizin of the estate if there be a forced heir or a legal heir who is called by law to the inheritance. R.C.C. arts. 940, 942.
"The universal legatee is invested with the ownership and seizin where there are no forced heirs at the death of the testator." Tulane University v. Assessors, 40 So. 445, 115 La. 1028.
We are aware that the opinion we have expressed is apparently at variance with the opinions of this court cited by defendant and warrantor, but in the cited cases the facts are quite different from the facts of this case, and it does not appear that the question of adverse possession as the basis for the beginning of the prescription pleaded was raised or considered in any of those cases.
It may be true that the probate of a will and an ex parte judgment ordering its execution is sufficient to give rise in time to a right of property, even though there be a forced heir, nevertheless, if, before execution is had, litigation is commenced contesting the validity of the will and the order of execution, and thereafter, on the joint application of the legatee and contestants of the will, the execution thereof is held in abeyance, and an order is obtained from the court appointing executors to administer the estate, all of which was done in this case, it is clear that a situation is presented here which has not heretofore appeared in any of the cases cited by either counsel; and it is likewise clear that the universal legatee never had adverse possession of the property, in fact, never possessed any part of it, for the simple reason that, until the administration of the succession was closed, its property and effects were in the possession of the executors until the title to it was conveyed by the universal legatee and the collateral relations of the deceased to the Eureka Homestead Society, in which transfer the executors of the estate acquiesced. It will be noted that no judgment recognizing any one as the heir or heirs of Edward Cunningham, deceased, and sending them into possession of the estate as such, was ever obtained, and that the final judgment recognizing the second wife of deceased as his universal legatee and sending her into possession of the estate was obtained long after the property had been sold.
The views we have expressed, and the unusual circumstances surrounding the succession proceedings which lead up to and culminated in the sale of the succession property without any order of court authorizing or approving said sale, by parties claiming to be the legatee and sole heirs of deceased, all of whom not only ignored the presence and rights of a forced heir, but denied his existence, leads us to the conclusion that, in this case, the prescriptive period which operates as a bar to the assertion of the forced heirs' action for the reduction of the excessive donation began to run at the date of the sale of the property, which date was the beginning of adverse possession.
It is the accepted rule that title to real estate is not lost by prescription until another person has had actual possession of it, adverse to the owner, for the prescriptive period of time. R.C.C. 496; Generes v. Bowie Lumber Co., 79 So. 413, 143 La. 811; Harang v. Golden Ranch Co., 79 So. 768, 143 La. 1021; Roussel v. Railway Co., 93 So. 758, 152 La. 517; Harang v. Bowie Lumber Co., 81 So. 769, 145 La. 96; Dew v. Hammett, 91 So. 523, 150 La. 1094. The property involved in this suit was sold to the Eureka Homestead Society on March 9, 1917. This was the beginning of adverse possession, and the petition in this suit was filed by plaintiff on August 11, 1921, within five years from the date of the sale. Unless we should adopt the view urged by counsel for defendant and warrantor and hold that prescription began to run at the date of the probate of the will, it is apparent that neither of the pleas of prescription are tenable. Under the circumstances which are presented in this case, we cannot adopt that view and our conclusions are in no sense influenced by the doctrine, "Contra non valentem agere non currit præscriptio," which former decisions of this court have ignored, if the court has not actually repudiated that doctrine.
For these reasons, we are of the opinion that the judgment of the lower court should be avoided, the pleas of prescription should be overruled, and plaintiff should have judgment recognizing him as the forced heir of Edward Cunningham, deceased, and the owner, as such, of an undivided one-third interest in the real estate described in the petition. We think that the evidence shows that $30 per month was fairly and equitably a one-third of the rental value of the property from judicial demand, and, although no reconventional demand was filed in this suit, the testimony admitted shows that defendants expended $2,000 in improving the property and that these improvements enhanced its rental value. We think plaintiff is entitled to judgment for $30 per month from judicial demand, as rent, subject to a credit of $666.66 2/3; the said sum being one-third of the cost of the improvements placed upon the property.
For these reasons, the judgment appealed from is avoided, and it is now ordered and decreed that there be judgment in favor of plaintiff, Joseph Emmett Gahn, and against defendant Mrs. Iska Brown, wife of Charles Kohlmeyer, recognizing and decreeing Joseph Emmett Gahn to be the owner of an undivided one-third interest in and to two lots of ground, with the improvements thereon, and the rights, ways, privileges, etc., thereto belonging situated in the Sixth district of New Orleans in square No. 396, bounded by Pitt, Atlanta, Dufossat and Valmont streets, designated as lots Nos. 12 and 13, each measuring 32 feet 5 inches front on Dufossat street by a depth between parallel lines of 120 feet, and sending him into possession thereof as owner.
It is further ordered, adjudged, and decreed that there be judgment in favor of Joseph Emmett Gahn, plaintiff, and against Mrs. Iska Brown, wife of Charles Kohlmeyer, for $803.33, being the sum of the difference between one-third of the rental value of the property from judicial demand and one-third of the cost of improvements placed thereon by defendant.
It is further ordered, adjudged, and decreed that there be judgment in favor of defendant, Mrs. Iska Brown, wife of Charles Kohlmeyer, and against Dr. P.B. Salatich, warrantor, as prayed for in defendant's answer, except as to the judgment for $803.33, for rents less the improvements.
It is further ordered, adjudged, and decreed that there be judgment in favor of Dr. P.B. Salatich, warrantor of defendant, and against Mrs. Loretta Johnson, wife of Joseph Hellen, Mrs. Elizabeth Grace, divorced wife of Edward Cunningham, deceased, John Louis Cunningham, Mrs. Mary Kehoe, widow of Edward Foley, Mrs. Mary Cunningham, widow of Thomas Houston, and now wife of William F. Brooks, as prayed for in warrantor's answer, and that the costs of this appeal be paid by defendant.
O'NIELL, C.J., dissents, being of the opinion that the prescription pleaded is prescription liberandi causa.
OVERTON, ROGERS, and ST. PAUL, JJ. concur in decree.
On Rehearing.
This is an action by the plaintiff to recover his legitime, being a one-third interest in certain real estate situated in this city and formerly belonging to Edward Cunningham and now in the possession of the defendant and warrantors.
The plaintiff is the son of the adopted daughter of Cunningham and his capacity or quality as a forced heir of said Cunningham (the death of his mother having preceded that of Cunningham) was not contested in the pleadings, was not urged in the original briefs or in the oral argument either on the original or the rehearing; hence we are not called upon to decide the question of the plaintiff's legal status as an heir.
The real defense to the suit is twofold: First the prescription of five years acquirendi liberandi; and, second, that having purchased the said property in good faith from those who acquired from the apparent and presumptive heirs of Cunningham, the defendant's title and possession cannot now be disturbed by the real heir, whose existence was unknown at the time the said presumptive heirs took possession of the property.
Edward Cunningham died in this city on June 27, 1915. He was survived by a divorced widow, two brothers and two sisters, and the plaintiff. He had made two wills; one dated July 6, 1909, and the other May 13, 1914. When the first will was written, the testator and his wife had not been divorced, and in that will he bequeathed all of his property to his wife; she was however not designated by name.
In his second will, which was written after the divorce, he did not specially revoke the prior will, but he did make dispositions, which, if they had been legal, would have had that effect. He directed that part of his real estate be rented until a sufficient amount had been received to discharge a debt against the property and authorized his executors at their discretion to sell certain other real estate to pay debts. This latter will also contained some small legacies inconsistent with the first will and named John E. Cunningham and Peter Mooney as executors. The first will did not name an executor.
On July 14, 1915, the will of May 13th was presented for probate by John L. Cunningham, but for some reason unexplained the said will was not then probated. One of the sisters, on January 20, 1916, filed an application to be appointed administratrix of the succession and this application was opposed by the two brothers.
On March 17, 1916, Elizabeth Grace Cunningham, the divorced widow, presented for probate the will dated July 6, 1909.
In her petition for probate it was alleged that the decedent left no forced heirs and that he bequeathed to her all of his property. She did not pray for the appointment of an executor, nor did she pray that she be recognized as the sole and universal legatee under the will.
This will was probated on April 7, 1916, but the order named no executor; the order of probate simply being that the will be deposited in the office of the clerk of the civil district court and that the execution thereof take place according to law.
On June 9, 1916, the court, on joint motion of the parties, appointed Mrs. Elizabeth Grace Cunningham and John L. Cunningham joint executors of the estate.
Thereafter the brothers and sisters of the decedent sued to annul the will of July 6, 1909, on the ground that Mrs. Cunningham was not the wife of the testator at the time of his death when the will took effect, and therefore was not a beneficiary under said will. It was further contended that the first will was revoked by the second one.
In answer to this demand filed on November 17, 1916, Mrs. Cunningham affirmed the validity of the will in her favor, and prayed that she be decreed to be entitled to all of the property which Edward Cunningham owned at the time of his death.
The matter of the probate of the second will and the action of nullity of the first will appear to have been tried together, and on March 8, 1917, judgment was rendered by the district court rejecting the demand in nullity and ordering the probate of the will of May 13, 1914, except as to the disposition regarding the renting of the property, the care of the brother and sister of the testator, and the purchase of a lot in the cemetery.
An appeal was prosecuted from this judgment and the judgment was affirmed by this court on January 3, 1918. 77 So. 506, 142 La. 702.
It may be well to mention here the fact that the widow and collateral heirs pending the contest over the two wills compromised their differences by which all of the disputants should share in the property of the estate.
On March 9, 1917, the widow and the brothers and sisters joined in a sale of the property to the Eureka Homestead Society and thereafter the property by sequent transfers passed to the defendant and warrantors.
We have given the dates and facts concerning the estate and leading up to the present suit, at length and in detail, because of their significance and as we take it, important bearing on the applicability of the pleaded prescription, as well as the other defense relied on by the defendant and warrantors.
The plea of prescription is based on Civil Code, art. 3542, and the jurisprudence construing that article, in which it is declared that actions for the reduction of excessive donations are prescribed by five years.
It will be observed that the article of the Code does not fix the period at which this prescription begins to run against an action to reduce either a donation inter vivos or a testamentary disposition and it must be admitted that the jurisprudence on the subject has not been entirely uniform and free from apparent confusion.
Article 1504, Civil Code, seems to contemplate that the action arises at the date of the death of the donor or testator, for it provides that, on the death of the donor or testator, the reduction of the donation, whether inter vivos or mortis causa, can be sued for only by forced heirs or by their heirs or assigns.
In the case of Cox v. Von Ahlefeldt, 30 So. 175, 105 La. 543, the prescription of an action to reduce a testamentary disposition was held to commence to run from the probating of the will, and the same rule seems to have been applied in Succession of Meisner, 46 So. 889, 121 La. 863, and in Succession of Williams, 61 So. 852, 132 La. 866.
But in the case of Jones v. Jones, 44 So. 429, 119 La. 678, it was held that the prescription of an action to reduce an excessive donation inter vivos begins to run from the date of the death of the donor.
The reason for the difference in the application of the prescription to the two classes of donations is apparent. As stated by counsel for defendant, with respect to donations inter vivos the forced heir can ascertain whether they affect the legitime immediately on the death of the donor, but with respect to testamentary dispositions it is impossible for such heir to determine whether his legitime has been affected until the instrument purporting to have that effect has been produced and probated.
We are of the opinion that the prescription pleaded is acquirendi liberandi and that, where a will naming a universal legatee with seizin of the property has been duly probated and such legatee has been recognized and sent into possession of the property by judgment of a court of competent jurisdiction, then such prescription begins from that date to run against the action of the forced heirs for reduction.
The record in this case, however, discloses an exceptional and peculiar state of facts to which the rule just stated cannot be made to apply and the prescription cannot be held to have commenced on April 7, 1916, the date when the will was proved and ordered to be deposited and executed. The prescription only began to run after the judgment rendered on March 8, 1917, which judgment probated the will of May 13, 1914, modifying the previous will, and which was the first and only judgment that recognized the widow as the one who was named as universal legatee in the will of July 6, 1909.
The order of probate of April 7, 1916, could not possibly form the basis of the beginning of the prescription, for, as we have seen, the will did not name the universal legatee, the order of probate did not recognize the widow as universal legatee, it did not send her into possession under the will, and it did not appoint any one to carry the will into execution.
It was not possible for the plaintiff to know for certain that the widow was the one who was to be considered as the universal legatee until the judgment of March 8, 1917.
He did not know and could not have known until that time against whom to bring his suit for reduction of the testamentary disposition. It is a well-recognized principle that prescription never begins to run until the cause of action arises, and the cause of action here did not arise until the widow was recognized as the party who was referred to in the will, and who was entitled to the benefits conferred by that will.
The plaintiff, therefore, brought his suit in less than five years from the date when it was definitely determined that there was an adversary claiming adversely to him and against whom he could bring his suit.
In support of the second ground of defense, the defendant cites with confidence the cases of Martinez v. Wall, 31 So. 1023, 107 La. 737; Succession of Derigny, 63 So. 56, 133 La. 382; and same Succession in 100 So. 251, 156 La. 146, which hold that, where the existence of the real heir is unknown and a person supposed to be the legal heir has been sent into possession, third persons may safely deal with the supposed heir thus sent into possession; that a sale consented to by a putative or apparent heir must be maintained where there is good faith on the part of the purchaser and vendor.
We have no fault to find with the ruling in the cited cases, and we approve the same.
But the principle adopted cannot be applied in this case.
The facts in those cases are entirely different from the facts presented in the instant case. In the cited cases the putative and apparent heirs had been recognized as such and sent into possession of the property by a judgment of the court and the purchasers had the right to rely with full faith on the judgment so decreeing the parties to be as they represented themselves to be.
It is to be observed that the court did not lay down the broad rule as contended for here that, where the existence of the real heir is unknown, third persons may safely deal with the supposed heir; but the court, as we construe the decisions, emphasized the fact that the rule established only applied to cases where the person supposed to be the heir had been sent into possession of the property in some legal proceeding.
That pronouncement is in perfect consonance with the language of article 77 of the Civil Code:
"In case a succession shall be opened in favor of a person whose existence is not known, such inheritance shall devolve exclusively on * * * that person on whom the inheritance should have devolved if such person had not existed."
The quoted article clearly contemplates some judicial proceeding recognizing and sending such supposed or apparent heir into possession of the property.
The court in the cited cases did not hold, and this court has never held, so far as we are informed, that a purchaser may safely rely on the extrajudicial assumption unsupported by any authoritative recognition that his vendor possesses the quality represented or assumed by him.
Yet that is just what the contention amounts to in this case.
The collateral heirs assumed that quality and joined in a sale of the property. They have never been judicially recognized as heirs and have never been sent into possession of the property. If the defendant is to be protected in his purchase under the principle contended for, then collateral heirs, or heirs assuming that quality, can take possession of an estate, appropriate the property thereof, or sell the same on the day following the death of the party to whom they are supposed to be heirs or represent themselves to be heirs, and the purchaser would be protected against the claim of the forced heirs thereafter appearing.
Such a proposition cannot be sustained under any law or jurisprudence.
Nor can the doctrine asserted protect the defendant's title under the purchase from Mrs. Cunningham, the universal legatee.
She was not an apparent nor a presumptive heir when she joined in the sale of the property within the meaning of article 77, Civil Code, and decisions supra.
The article of the Code deals with heirs who succeed to an estate by reason of blood relationship and not with those who are instituted heirs.
It has been well said that testamentary dispositions are made for the very purpose of subverting the order of nature, and there can be, therefore, no analogy between the two modes of transmitting rights.
We conclude that the case, as presented by the facts, is one where the supposed universal legatee, who had not been recognized as possessing that quality, and the collateral heirs, who had not been recognized as such, and sent into possession of the property, took possession of the property of the estate and sold the same to the authors of defendant's title.
That such purchasers cannot shield themselves from the pursuit and recovery of the property by the forced heir on the doctrine relied on so long as the prescription of five years has not accrued and which prescription began to run only from March 8, 1917; this suit being filed August 11, 1921.
The warrantor Peter Blaise Salatich complains that the court was in error in rendering judgment in his favor against the other parties, Mrs. Hellen, Mrs. Elizabeth Grace Cunningham, Mrs. Foley, Mrs. Houston, and John Louis Cunningham. He is correct in this contention.
The said parties were called in warranty, but were never cited, and made no appearance in the case.
It is therefore ordered and decreed that the judgment heretofore rendered be reinstated and made the final judgment of this court, in so far as it sets aside the judgment appealed from, and in so far as it recognized the plaintiff's ownership in the property described, and in so far as it condemns the said Mrs. Brown to pay the plaintiff the sum of $803.33.
It is further decreed that Mrs. Brown have judgment against Dr. P.B. Salatich for the like sum of $803.33. The judgment in favor of plaintiff against Mrs. Brown and that in favor of Mrs. Brown against Dr. Salatich to bear legal interest from judicial demand, to wit, August 11, 1921, till paid on each installment of rent as it became due.
It is further ordered that the right of Dr. Salatich to proceed against the other parties called in warranty, but not cited, be reserved.
The costs of this suit to be paid by the defendant and warrantors.
O'NIELL, C.J., and ST. PAUL and ROGERS, JJ., dissent.
On Motion to Correct the Decree.
In our decree on rehearing we omitted to give judgment in favor of Mrs. Brown against her warrantor, Dr. P.B. Salatich, for the value of the one-third interest in the land which plaintiff recovered from Mrs. Brown. This was obviously a clerical error and should be corrected.
The decree is therefore amended, and Mrs. Brown is hereby decreed to have judgment against Dr. P.B. Salatich for the one-third interest in the real estate for which she was condemned in favor of plaintiff, being the amount which it may cost the said Mrs. Brown to respond to and settle said interest in said real estate.
It being the purpose of this amended decree to grant to Mrs. Brown against Dr. P.B. Salatich the full measure of relief for which she has been condemned in favor of plaintiff.