1st or 15th of each month, and received no order to the contrary until the letter of November 13th was received. When asked about the letter referred to by plaintiff, Davidson replied that he did not remember such a letter. Dixon, in rebuttal, did not deny the conversation about the expense money detailed by plaintiff in his testimony, and Weir did not testify in rebuttal on the subject. Although plaintiff had been notified that the expense account would be discontinued, the company gave no instructions to the cashier not to pay until November 13th. Under the evidence, we think that the company assented tacitly, if not expressly, to this particular payment.

He

But on this theory there is less excuse for plaintiff's failure and neglect to make his usual reports. His plea that he was compelled to walk or pay his own expenses while soliciting for the company has no force until after November 15, 1902, when the payment of expense money was discontinued. made no reports between October 23d and November 15th, while receiving this allowance. Under the circumstances, plaintiff's persistent refusal or neglect to make said reports was just cause for his discharge. We cannot assent to the proposition that an employé may disregard the lawful orders of his employer, on the ground that the acts directed to be done are not necessary to the conduct of the business, or excuse himself on the plea that obedience to the orders was not insisted upon. Plaintiff, on receiving the letter of October 20th containing the request to continue his daily reports, did not even answer the communication. He was in the wrong in this matter, and failed and neglected to perform his duties. He therefore cannot demand the penalty accorded by law to the faithful servant who has been discharged without serious ground of complaint.

It is therefore ordered, adjudged, and decreed that the amount awarded by the judgment below be reduced from $4,725 to $25, and that, as thus amended, the judgment appealed from be affirmed; plaintiff and appellee to pay the costs of appeal.

MONROE, J. I dissent.

(113 La. 87)

No. 15,235.

LAWRENCE ▼. PENN MUT. LIFE INS. CO.*

(Supreme Court of Louisiana. June 20, 1904.)

LIFE INSURANCE-PAYMENT OF PREMIUM-NOTE OF INSURED-RETURN OF POLICY.

1. Although the policy provides that it is not to take effect until the first premium shall actually have been paid, the company, in effect, waives that provision if it accepts a note instead of the cash. It (the policy) takes effect from the date of the acceptance of the note by the company. After having thus waived, it can

*Rehearing denied June 30, 1904.

not forfeit the policy or treat it as null-at least, not without first calling on the maker and notifying the assured. Forfeitures are not favorites with courts.

2. A policy cannot be returned to the_company without the consent of the assured and of the beneficiary.

3. The plaintiff, in writing the judgment, should have given credit to the defendant for the amount of the note.

(Syllabus by the Court.)

Appeal from Thirteenth Judicial District Court, Parish of Rapides; W. F. Blackman, Judge.

Action by Joseph H. Lawrence, administrator, against the Penn Mutual Life Insurance Company. Judgment for plaintiff. Defendant appeals. Modified.

Andrews & Hakenyos (James J. McLoughlin, of counsel), for appellant. Hunter & Hunter, for appellee.

BREAUX, C. J. Payment is claimed on a life insurance policy amounting to $2,500 issued by the Penn Mutual Life Insurance Company, dated the 4th of March, 1902, to the late Albert O. Lawrence, through their local agent at Alexandria, La.

The first premium on this policy amounted to $62.95. Under the terms of the policy this premium was payable cash. One of the guarantied clauses of the policies reads as follows:

"This policy does not take effect until the first premium shall actually have been paid."

The policy further provides, among the warranty clauses, that, if premiums are not paid when due, the policy shall be subject to the nonforfeiture terms of the policy.

Instead of cash, as required by the policy, the assured executed his note, dated the 8th day of March, 1902, for the first premium, amounting to the sum above mentioned, payable in 90 days, and on the day following the policy was delivered to the assured.

A

The note was not paid at maturity. short time previous to its maturity the assured fell very ill.

The note was placed in the Rapides Bank for collection, of which fact the assured received notice at the time while he was in his sick bed, a few days prior to his death. He was asked by his brother on the father's side (half-brother) if he wished to pay it, a moment after the witness mentioned that he had asked the sick man to let him, if he wanted him (the witness) to pay it, to which the sick assured replied: "No; let it alone." A day or two after, this half-brother spoke to the assured in words to lead him to believe that he had paid the note.

The local agent called to demand payment. He was informed that, in the delirious state in which his debtor was, it would serve no purpose to go into the sick room. He left, and a few days thereafter he met his brother, before referred to, and, on his (the agent's) request, the policy was handed over to him.

2. See Insurance, vol. 28, Cent. Dig. § 518.

He returned it to the general agent. About this time he repaired to the bank in question, obtained the note, and forwarded it, also, to the general agent. It seems that the company knew all about the note and the deferred payment it represented.

The assured lived about twelve days after the policy had been delivered back to the company. He never was told that the policy had been returned, nor that the note had not been paid by his brother, who said to him that he had paid it. The brother testified that he surrendered the policy because he was under the impression that, the note not having been paid at maturity, the policy was forfeited; that it was after his brother's death that he was informed by the attorney of the succession that the policy had not been forfeited. He then called on the defendant, tendered the amount of the note representing the premium, and demanded the return of the policy. The general agent refused the tender, and declined to return the policy. This suit followed, and during the trial both the note and the policy were brought into court, and are now in evidence.

Defendant's contention is, substantially, that the policy never took effect; that, under terms of the policy, the note not having been paid at maturity, the policy was null; and that, if it did take effect at all, it was forfeited, and all recourse thereon lost, by its voluntary surrender to the company's agent.

Defendant makes a point of the fact that the brother who was instrumental in returning the policy is the plaintiff here as administrator.

The point renders it necessary for us to state, in justice to plaintiff, that the testimony shows that he is not the beneficiary of the policy.

There is no question of the fact that the assured had complied with all that was required of him by the defendant in order to enable him to obtain its policy.

The contract between assured and insurer was made complete by delivery of the policy for the note before mentioned.

The assured, owing to his severe illness at the time, was not called upon for payment of the note by the agent. Its maturity was mentioned by the brother, as before stated, and, although he had declined to let his brother pay the amount for him, he was informed a few days thereafter that the note had been settled, as the witness has it, and adds, "That is paid;" and we infer that the assured was under the impression from that time that it had been paid.

It does not appear that the surviving brother was the agent of the assured, or that the assured in any manner authorized him to return the policy. The act of the brother in returning the policy was entirely unauthorized and without the shadow of a right. He consulted no one, and delivered the policy at the request of the local agent.

We would not be justified in recognizing validity of a surrender in which one of the principals to a contract was entirely ignored. It was, as to him, the merest nullity. It takes the consent of the parties to the act to annul and set it aside. It cannot be done ex parte, or at the instance of one who is absolutely without authority. There was no voluntary surrender or any other surrender of it by the assured, and therefore no right accrued to defendant company to cancel it on that ground.

A policy cannot be delivered (returned to insurer) without the consent of the beneficiary. Here it is true that the assured was his own beneficiary. None the less the rule applies both to the assured and the beneficiary-that no one can surrender a policy without the consent of the parties who own the policy. Pilcher v. Ins. Co., 33 La. Ann. 322; Trager, Tutrix, v. Ins. Co., 31 La. Ann. 235; Whitehead v. Ins. Co., 102 N. Y. 143, 6 N. E. 267, 55 Am. Rep. 787; Schneider v. Ins. Co., 123 N. Y. 109, 25 N. E 321, 20 Am. St. Rep. 727; Bank v. Hume, 128 U. S. 195, 9 Sup. Ct. 41, 32 L. Ed. 370.

This brings us to a consideration of the question whether the policy ever took effect, because the first premium was not actually paid as required by the words of the policy. The terms were extended by the local agent, and this extension was approved by the defendant company, and we have seen that the note taken by this agent was afterwards accepted by the company.

It has been held that a note made and delivered under these circumstances is to be viewed in the light of a payment and a compliance with the condition required by the company's policy, as before stated.

We take it that if the agent of an insurance company, who is authorized to accept cash, accepts a note, he is, in the event of its nonpayment, liable for the note, and the note is considered as so much cash which should have been received by him for account of his company.

If the company takes it as its own, and approves his act, it is to be viewed in the light of having possession of a note which it accepted in payment of premium due on the policy. Unless it be stipulated in the policy, or in some way in the contract of insurance, that forfeiture is to be immediate in event the note is not paid, no such result can follow its nonpayment. The power to forfeit or cancel must be "nominated in the bond." Here no such consequence was stipulated.

In the case of Union Cent. Life Ins. Co. v. Taggart (Minn.) 56 N. W. 579, 43 Am. St. Rep. 474, the court held, regarding the condition of a policy, as follows: "It should not be valid or binding until the first premium had been paid," but in this policy no special mode of payment was laid down in the policy, and a note was made by the assured and accepted by the company-that, even in the absence of any express agreement to that ef fect, the company must "be deemed to have

accepted the note in payment of the premium, and the policy became binding, and constituted a valid consideration for the note." There was a warranty originally, which the company chose to waive by accepting the note which has been delivered to its agent.

After having thus, in effect, waived this clause, it could not, without any notice whatever to the assured, or without special demand, cancel the policy.

This note contains an additional consideration. The maker was to pay interest at the rate of 8 per cent., and attorney's fees in case of suit, which had at least a tendency to make it a separate and independent obligation from that which it was originally.

In a case before us there was a waiver of payment as stipulated in the policy. The court held the company bound by its waiver, and compelled it to comply with the contract, as if prepayment had been made as required by the stipulation of the policy. Sheldon v. Ins. Co., 25 Conn. 207, 65 Am. Dec. 565.

Forfeitures have never met with the special encouragement of courts. They must find support in law in a manner that leaves no doubts as to the right to their exercise. Gunther et al. v. Mutual Aid Association, 40 La. Ann. 777, 5 South. 65, 2 L. R. A. 118, 8 Am. St. Rep. 554.

Un

A question regarding costs arises. questionably, plaintiff owes the amount of the note in question and interest.

It should be paid or deducted from the amount due on the policy. There was a tender, which seems to have been overlooked in rendering the judgment of the district court. It is not mentioned in the judgment, although alleged in the pleadings.

The judgment must be amended by crediting the amount of this note.

For reasons assigned, the judgment appealed from is amended by deducting therefrom the amount of the note made, as mentioned in this decision, and interest stipulated thereon. With this amendment, the judgment is affirmed, at appellee's costs.

(113 La 93)

No. 15,117. STATE ex rel. BUSHA'S HEIRS v. REGISTER OF CONVEYANCES et al. (Supreme Court of Louisiana. June 6, 1904.)

TAXATION-OFFER TO REDEEM-REFUSAL BY AD

JUDICATEE-MANDAMUS.

1. The contention of the defendant (an adjudicatee at a tax sale), based upon Raymond v. Villere, 7 South. 900, 42 La. Ann. 488, that he is entitled, after he has refused to accept the money tendered him for the redemption of the property which he had purchased, to have the steps taken for the redemption conducted contradictorily with himself through judicial proceedings via ordinaria, commencing with a petition and followed by a citation, is without foundation. While an adjudicatee at a tax sale acquires certain rights, he assumes certain duties; among them the duty of allowing the redemption of the property on tender of the amount fixed by law. If he refuses to perform that duty, mandamus is the proper remedy.

2. When a person's property is sold at tax sale, the owner is not ipso facto deprived of the ownership and the legal possession thereof, though the adjudicatee acquires certain rights in respect to the property, which, if not cut off by redemption, will ripen into ownership. During the period fixed for redemption the rights of the adjudicatee are inchoate.

3. Any one may, for the advantage of the owner of the property, act as his negotiorum gestor, and make payment of redemption money; this even without his knowledge. There is a difference between redemption under a conventional sale made with right of redemption reserved and redemption under a tax adjudication.

Provosty, J., dissenting. (Syllabus by the Court.)

Certiorari to Court of Appeal, Parish of Orleans.

Application by the state, on the relation of the heirs of Sallie Busha, for writ of mandamus to the register of conveyances and John F. Lindner. Judgment for relator was affirmed by the Court of Appeal, and Lindner applies for certiorari or writ of review. Affirmed.

Theodore Cotonio, for applicant. William Winans Wall and Johnston Armstrong, for respondent heirs of Sallie Busha. Dinkelspiel & Hart, for respondent Joseph Barry.

Statement of the Case.

NICHOLLS, J. In re John F. Lindner ap plying for certiorari or writ of review to th Court of Appeal, parish of Orleans.

In the petition filed by the plaintiffs they alleged: That they were the sole owners in indivision of certain property, which they described. That it was adjudicated to John F. Lindner by the state tax collector of the Seventh District on June 14, 1902, for the state taxes of 1901, and the tax deed thereof was registered in the conveyance office of New Orleans on the 17th of June, 1902.

That they have tendered by notarial tender made by Charles Schneidau, notary public, the sum of $27.50, the amount of the price paid by said Lindner at said tax sale, and all costs, taxes, and charges paid by said purchaser since said adjudication, together with 20 per cent. on said total amount, and that proper deed of redemption was presented to said Lindner to be signed, but he declined to receive said money, redeem said property to them, or sign said redemption deed, and that thereupon said notary did deposit said sum in the Citizens' Bank of New Orleans to the credit of said Lindner, and subject to his order, and so notified him. That they had demanded of A. Sambola, register of conveyances for the parish of Orleans, the cancellation of the inscription of said tax deed from the record of his office. That, although it was his duty to cancel the same, he had refused to do so, and still persisted in his refusal. That an alternative writ of mandamus was necessary to afford them adequate relief in the premises. In view of the premises, they prayed

Lindner excepted to the proceedings on the grounds that relators were without right to proceed summarily; that, if any right they had had (which fact he specially denied), they should proceed via ordinaria to annul defendant's title. After such proceedings via ordinaria, and judgment rendered annulling his title, and upon the refusal of the register of conveyances to make the cancellation, then, and then only, could relators proceed by mandamus. That he could not be compelled to try summarily the question of title and the question of pretended ownership, as was here attempted, and there were no proper parties respondent.

He prayed that the exception be maintained, and the suit dismissed. In the event of its being overruled, and not otherwise, and reserving the benefit of the same, he further excepted that relators' petition disclosed no cause of action. Should this exception be overruled, and not otherwise, and under reservation of same, he further excepted that relators' petition was too vague and indefinite to enable him to safely plead thereto; that it was especially vague in this particular: that it failed to allege how, when, and from whom they acquired the property described in their petition, and to give the full derivation of their title and of the title of their author; that, had relators proceeded via ordinaria, and had they alleged how they became the owners of the property, he would have been entitled to and could have demanded oyer of their alleged title-all of which was denied to him because of the summary proceedings resorted to by relators, and of the rules of procedure which required a respondent to make a full return to the writ.

Under reservation of these exceptions, he pleaded the general issue, and specially denied that the relators were the owners of the property described in their petition, or had any right thereto. Anthony Sambola, the register of conveyances, answered, pleading the general issue.

On the 24th of June, 1903, the district court rendered judgment in favor of the relators, ordering, adjudging, and decreeing the alternative writ of mandamus to be made peremptory, and accordingly the register of conveyances for the parish of Orleans and John F. Lindner were commanded to cancel and erase the inscription of registry of the tax deed made by said register in his records on June 17, 1902, said tax deed being made by the state tax collector for the Seventh District of New Orleans to John F. Lindner on the 14th of June, 1902, for the state taxes af 1901. On the 30th of June, 1903, this

judgment was signed in open court, and on the same day James Barry, alleging himself to be the register of conveyances for the parish of Orleans as successor to A. Sambola, who had died since the filing of his answer, made himself a party to the proceedings.

On the trial of the case relators offered in evidence certain proceedings taken by themselves in the civil district court for the parish of Orleans, praying to be recognized as the heirs of Sallie Busha, and placed in possession of all the property belonging to her, specially designating as belonging to her the property in litigation in this case, together with the judgment of the district court rendered upon their petition, which judgment recognized them as such heirs, and placed them in possession, as owners, of this particular property.

Defendant in rule objected on the ground that the proceedings were ex parte, and did not bind him. The court overruled the objection, and admitted the evidence. We think it committed no error, in so doing. The proceedings and judgment made at least a prima facie showing of the facts recognized, and furnished sufficient evidence on the issues in the absence of the advancing of and claim of heirship or ownership in any one else. The judgment of the district court was as follows:

"It is ordered, adjudged, and decreed that the alternative writ of mandamus issued herein be made peremptory, and accordingly that the register of conveyances in and for the parish of Orleans and John F. Lindner be, and they are hereby, commanded to cancel and erase the inscription of the registry of tax deed made by said register of conveyances on June 17, 1902, in Book 185, folio 455, of the records of his office, said tax deed being made by the state tax collector for the Seventh District of this city to John F. Lindner on June 14, 1902, for the state's taxes of 1901 registered against the following described property:

"A certain lot of ground and improvements thereon in the Seventh District of New Orleans, in square bounded by Lowerline, Millandon, Ann, and Mississippi streets, designated as 'Lot No. 1, in square No. 32.' Said lot No. 1 measures 30 feet front on Mississippi street by a depth of 105 feet, and forms the corner of Mississippi and Millandon streets. Said respondent John F. Lindner pay all costs."

Lindner appealed to the Court of Appeal for the parish of Orleans. That court affirmed the judgment, using the following language:

"The relators, alleging their ownership of certain real estate sold to one Lindner for taxes, their seasonable tender of redemption within legal delay, and its refusal, proceeded by mandamus directed to the register and the tax purchaser to cancel the inscription of the tax sale.

"Exceptions were filed to the form of proceeding on the ground that the issue of title is presented, which cannot be summarily tried under the law.

"The exception must prevail if it be true that the question between the litigants is one of title (42 La. Ann. 488, 7 South. 900), but such does not appear to be the case here."

In Coleman v. Baker, 24 La. Ann. 524, the court said:

"It is not a petitory action. The plaintiff admits the regularity of the purchase at tax sale by defendant, but claims that he has defeated the inchoate rights of defendant by having tendered to him within the year allowed by statute the price with the penalty costs, etc.

"The defendant admits the title in Thompson at the moment of the sale. The only question at issue between the plaintiff and defendant is whether the statute has been complied with in such a way as to entitle the plaintiff to a redemption. The conflict of title involved in the petitory action is not found in this."

In Martinez v. Gulf States, etc., No. 1,672 of our docket [the Court of Appeal], we said:

It

"The title of the defendant resulting from the tax sales under which defendant went into possession was divested absolutely by the exercise of the right of redemption. does not affect said right of redemption in any wise that defendant refused the tender in redemption and held onto the property. "The right to redeem is absolute by the Constitution and by the laws."

In Montgomery v. Burton, 31 La. Ann. 330, and Basso v. Benker, 33 La. Ann. 432, it was held that, when a tender is made according to law by a party in interest to the tax purchaser for the purpose of redemption, the tax title is defeated, whether the tender be accepted or not, and from that moment a creditor of the former owner has the right to seize the property.

From the foregoing authorities it appears that an action to enforce a tender of redemption does not involve the issue of title, and that after such tender legally made the tax title becomes a mere illegal incumbrance, which may be summarily erased by mandamus taken contradictorily with the parties in interest.

The rule prevailing as to mortgage inscriptions sanctioned by practice and judicial precedent may properly be applied to a case like this. Code Prac. art. 830; Lanaux v. Recorder of Mortgages, 36 La. Ann. 975; State ex rel. Jarvo v. Judge of Criminal District Court, 37 La. Ann. 579. Proof of interest sufficient to redeem (Atler v. Shepherd, 27 La. Ann. 208), and of tender according to law, are sufficient to entitle the relators to the relief prayed for. Such proof is found here.

The judgment recognizing relators as the heirs of the former owner is offered, and is

fortified by the testimony, and it is shown that, after negotiations somewhat obstructed by Lindner and his counsel, a tender was made, and not accepted.

The amount is not shown to be insufficient.

Opinion.

The contention advanced by the defendant, based upon the decision of this court in Raymond v. Villere, 42 La. Ann. 488, 7 South. 900, that he, as the adjudicatee of property sold at a sale in enforcement of taxes, was entitled to have the steps taken for the redemption of the property conducted contradictorily with himself through judicial proceedings via ordinaria, commencing with a petition and followed by citation, has no legal foundation. Raymond v. Villere, 42 La. Ann. 488, 7 South. 900, has no relevancy whatever in a case of this character.

When a person's property is adjudicated at a sale made in enforcement of taxes, the owner is not ipso facto deprived of the ownership and the legal possession thereof, though the adjudicatee acquires certain rights in respect to it which will, if not cut off by redemption, ripen into a title. During the period fixed for redemption the adjudicatee's rights are inchoate, as was expressly held very recently by this court in Moore v. Boagni, 111 La. - 35 South. 716.

The adjudicatee, in purchasing, acquires certain rights, but subjects himself to certain duties and obligations. He expressly takes upon himself and consents to making redemption of the property on receiving payment of the amount fixed and established by law. It is not required that redemption should be accomplished through the courts. For the purpose of perpetuating the evidence of payment and the fact of redemption, the payment should be made by notarial act. No particular form or words are necessary, though the facts should be clearly made to appear.

The adjudicatee is not called on to make a cession or transfer of his rights in favor of any other person. All that he has to do on payment made to him is to surrender the rights which he had acquired by his purchase, leaving the result of that surrender or relinquishment to inure to the party or parties who by law would be entitled to the benefit of the same. It will be noticed that no judgment in this case is rendered in favor of any particular person. The judgment is simply that the evidence of the defendant's rights be canceled and erased from the records. We think that any one may, for the advantage of the owner, as negotiorum gestor, make payment for him of the redemption money, even without his knowledge. Civ. Code, arts. 2133, 2134. There is a great difference between redemption under a conventional sale with power of redemption and redemption under a tax sale. In the former the title is transferred by the consent of the owner with conventional obligation assumed