Ball v. City of New Orleans

• Decision Date: 04 June 1900
• Docket Number: 13,325
• Citation: 52 La.Ann. 1550,28 So. 109
• Court: Louisiana Supreme Court
• Parties: MRS. J. A. BALL ET AL. v. CITY OF NEW ORLEANS ET AL

28 So. 109

52 La.Ann. 1550

MRS. J. A. BALL ET AL. v. CITY OF NEW ORLEANS ET AL

No. 13,325

Supreme Court of Louisiana

June 4, 1900

APPEAL from the Civil District Court, Parish of Orleans. -- St. Paul, J.

Rouse &amp Grant, for Plaintiffs, Appellees.

James J. McLoughlin, Assistant City Attorney, and Samuel L Gilmore, City Attorney, for Defendant, Appellant.

OPINION

MONROE, J.

This is a petitory action, brought by the heirs of Joseph Bilgery for the recovery of twelve lots of ground in New Orleans with the buildings thereon, known as the Second Street Market, together with certain rents and revenues. The defendants were the City of New Orleans, and its lessee, the New Orleans Contracting Company, Limited, but the contractor, having disclosed its lessor, was dismissed from the case, and the only defendant now before the court is the City of New Orleans, who pleads the prescription of one, two, three, five and ten years, and alleges that Joseph Bilgery acquired the rights and assumed the obligations of Joseph Raymond under ordinance No. 2041, A. S., and by that title operated the market in question for twenty years, and thereafter, to-wit, upon March 18, 1894, in accordance with the terms of the said ordinance and with the obligations of said Raymond, turned the same over to respondent, and that plaintiffs are, therefore, estopped to make the claim here set up, and should be condemned to make a clear title of said property to respondent, and she prays judgment accordingly.

The facts, as disclosed in the record, are as follows:

Upon March 18, 1873, the Council of New Orleans passed an ordinance, No. 2041, A. S., granting to Joseph Raymond permission to erect, at his own expense, a market-house, on the lots in question, and there conduct a market under municipal supervision, subject to the conditions; that, at the end of ten years, the city should assume the administration of said market, and should, for a period of ten years, retain all revenues in excess of $ 500.00 per month (or $ 6,000.00 per year); and that, at the end of twenty years, the property should revert to the city. It was further provided that the city should impose no taxes on said property, and that Raymond should not alienate, divert, or incumber it, to the prejudice of the city's rights; and the provisions of this ordinance were embodied in a contract, entered into between Raymond and the city, April 10, 1873, and duly registered in the conveyance office on the 17th of the same month.

It appears, however, that the lots upon which the market-house was to be erected had been purchased by Raymond from the Union National Bank, on February 27, 1873, for something over $ 14,000.00, of which a comparatively small part was paid in cash, and for the balance, of over $ 11,000.00, Raymond gave notes, secured by mortgage and vendor's privilege, which were outstanding and unpaid when the contract with the city was entered into. It further appears that, in April, 1876, some of the notes mentioned being past due, the bank caused executory process to issue thereon, under which the property was seized, and, upon March 3, 1877, adjudicated to Joseph Bilgery, as the subrogee of the seizing creditor, holding the ranking mortgage and privilege. Bilgery having gone into possession of the property died in September, 1877, leaving a widow, and four children, viz: a son by a previous marriage, and three daughters by the wife who survived him. In 1878, the widow acquired the interest of the son, Joseph M. Bilgery, and, thereafter, in 1879, she, also, died, and her three daughters, issue of the marriage with Joseph Bilgery, became owners of the entire property, and were put in possession, and so remained until March 30th, 1894, when the City of New Orleans, acting through the Commissioner of Police and Public Buildings, took possession; the circumstances connected therewith being thus stated, in a letter from the Commissioner to the Mayor, of date April 2, 1894, to-wit:

"DEAR SIR -- Acknowledging receipt of yours of the 29th ult enclosing copy of letter from City Attorney O'Sullivan, of same date, relative to the expiration of the lease of the Second Street Market, wherein he advises that I notify Joseph Raymond, or his agent to immediately turn over the market to the City of New Orleans, I beg to report as follows: On the morning of the 30th ult., I sent my chief clerk, Mr. Joseph E. Manning, to take charge, and collect the revenues, of the Second Street Market. He immediately proceeded to notify the several people occupying stalls therein that he was acting as the representative of the city, and that the city would collect the revenues from that date, the 30th of March, 1894. While Mr. Manning was in the act of notifying the different persons occupying stalls therein, the party who has been collecting the revenues (presumably one of the Bilgerys) ordered the occupants of the stalls to pay no one for the present, but as Mr. Manning was about completing his list of people occupying stalls in the market he called out to Mr. Manning that he had been...