91 So. 837 | La. | 1921
Lead Opinion
The fqur surviving children of Daniel and Elizabeth Berry are plaintiffs in a petitory action to recover a one-half interest in a square of ground bounded by Carrollton avenue, Solomon, Palmyra, and Gasquet (now Cleveland avenue) streets,, in the city of New Orleans.
The property in question was community property, having been acquired by Daniel Berry from J. B. Olivier by act of sale before J. J2. Spearing September 24, 1885, duly registered in conveyance office of the parish of Orleans.
Daniel Berry, the father of the plaintiffs, died October, 1888. He left a last will and testament, in which his wife, Elizabeth Berry, inherited one-fifth of one-half of his estate. The widow and the minor children were put in possession of the estate of Daniel . Berry by judgment of court, December 29, 1888, the minors being sent into possession under benefit of inventory, under judgment June 28, 1900.
After the death of Daniel Berry, his widow, Elizabeth Berry, married Arthur Climo,- and Mrs. Elizabeth Climo, by decree of court on March 1, 1889, caused the undivided four-fifth interest of the minors in the separate estate of their father, adjudicated to her, as well as the undivided two-fifth interest of the said minors in the community property, under article 343 of the Civil Code, authorizing the adjudication of the property held in common by the mother and the minor children to the mother.
On May 5, 1900, Frederick Camors acquired the property in dispute by a deed from P. F. Herwig, testamentary executor of Mrs. Elizabeth Climo, widow by first marriage of Daniel Berry, and the defendants in this case acquired by mesne conveyances their1 respective interests in this square of ground by purchase from Frederick Camors.
It is therefore clear that if defendants have any just title to this property, the same must rest upon the validity of the adjudication to Mrs. Climo. If she did not acquire the interests of the minors by said adjudication, then the sale of the minors’ interests in said property by her testamentary exeeu
As only the interests of the minors were adjudicated to Mrs. Climo, the adjudication was null. The Supreme Court in the case of Lyons v. Women’s League of New Orleans, 124 La. 222, 50 South. 18, said:
“Hence, it being so written in article 343 [Civil Code], the parent who wishes to acquire Ms minor child’s share in the property held in common must cause the whole property to be adjudicated to him, or else he takes nothing by the adjudication.”
The defendants, however, contend that the minors, having accepted the succession of their mother, are bound by her warranty as conveyed in the sale by her testamentary executor to Frederick Camors.
The judgment putting the minors in possession in the succession of Mrs. Elizabeth Berry, wife of Arthur Climo, shows that Daniel Berry, who was then a major, was placed in possession of his mother’s estate purely and simply, but the remaining tlvree minors were put in possession of her estate under benefit of inventory.
The plaintiffs are seeking to recover in this case, from third persons, no interest in property which they inherited from their mother, and of which they have been illegally divested during their minority; but the action which they here bring is to have restored to them their half interest in property of which they have never been divested, and which they derived from their father as his forced heirs.
“The action which the beneficiary brings against a third person in his own right cannot be paralyzed by an exception founded on a right against the deceased. Thus the beneficiary heir who revendicates his own property which has been unduly sold by the deceased cannot be repulsed by the maxim, ‘Quem de evictione,’ etc.” 2 Baudry La Cantiniere, No. 204; 4 Toullier, No. 357; Pothier, Vente, No. 175; 2 Mourlin, No. 289; 3 Marcade, Nos. 255-257.
In Tessier v. Roussel, 41 La. Ann. 474, 6 South. 542, 824, the Supreme Court said:
“We, therefore, conclude that the forced heirs, accepting under benefit of inventory, bringing their action of reduction in their own right, would not be estopped or hindered by any warranty ' of their ancestor which would be an exception founded on an obligation of the latter alone.”
The defense of warranty is therefore unfounded.
We will next consider the plea of estoppel against the minors by reason of the fact in the settlement made by the tutor with the minors in the mother’s succession, the minors must have received their part of the sale of this Carrollton avenue square.
The projet of partition shows that each of the plaintiffs was to receive his portion of the community property, including both the father’s and mother’s one-half of the community, after deducting the amounts received by each of said "heirs, and the receipt for the money by each of said heirs is found in transcript, page 225. But nowhere do we find in said receipt or in said projet of .partition any mention of the Carrollton avenue property, although we find other properties specifically referred to.
The pro jet of partition was filed April 26, 1901, while the receipt of plaintiffs, in the name of their attorneys, was filed December 10, 1901.
As a matter of fact, the Carrollton avenue property, being the property in litigation, was sold in 1892, as shown by the petition in the suit of Camors v. Herwig, Testamentary Executor, transcript, p. 241, for $2,000, and the judgment of the Court of Appeals in 1896 was complied with.
It may be assumed that at some time and in some account the testamentary executor accounted for the proceeds of this sale. There is no account which shows the fact. All the plaintiffs testify that they were nev
This court, in Crain v. Tremont Lumber Co., 134 La. 276, 63 South. 901, said:
“The proceeds of the sale were paid by the tutor to the minors on their attaining their majority, but without further explanation than that it was in settlement of the amount due them from their father’s estate, and without their knowing that it was for the proceeds of the sale of their property; and the contention is that by receiving said payment, they ratified the sale. As said in the case of Rist v. Hartner, 44 La. Ann. 378, 10 South. 760 : ‘The ratification of a transaction which is a nullity is a recognitive and confirmative act, and cannot be successfully passed, unless it is shown to have taken place with full knowledge of the circumstances 'and formal intention to cure the radical vice contaminating it, and with which it is infected, by )an unreserved sanction and approval.’ That acceptance of the proceeds of a sale does not operate a ratification, unless done with full knowledge. See Rocques’ Heirs v. Leveque’s Heirs, 110 La. 307, 34 South. 454 ; George v. Delaney, 111 La. 761, 35 South. 894.”
Under the facts of this case, it is clear that there was no ratification of the sale of the Carrollton avenue property, which was under private sale, even if the proceeds of said sale were accounted for in regular course and used for the maintenance and sustenance of the minors.
The defendants have pleaded the prescription of 10 years causa adquirendi. Daniel Berry, the eldest of the plaintiffs, was born August 19, 1878; E. T. Berry was born February 2,1882; M. F. Berry was born August 4, 1884; W. T. Berry was born October 18, 1886. The eldest child, Daniel Berry, did not become of age until August 19, 1899, and this suit was brought within 10 years after he arrived at the age of majority. The perscription causa adquirendi does not run against minors during their minority. C. C. art. 3522 ; Barrow v. Wilson, 38 La. Ann. 209 ; Messick v. Mayer, 52 La. Ann. 1161, 27 South. 815.
The plea of prescription of 10 years cannot prevail under this state of facts.
In the case of Crain v. Tremont Lumber Co., 134 La. 277, 63 South. 902, the Supreme Court said:
“In this case minors’ property was sold at private sale. Needless to say a sale of minors’ property at private sale, even though authorized by a family meeting, is null, except when the purpose is to effect a partition. Blair v. Dwyer, 110 La. 332, 34 South. 464 ; Fletcher v. Cavalier, 4 La. 268.”
The adjudication of the interests of the minors in this case to their mother was an absolute nullity.
The suit of Frederick Camors v. Herwig, Testamentary Executor of Mrs. Climo, formerly the wife of Daniel Berry, was based upon the allegation that prior to the death of Mrs. Climo she had through her agent, Terry, agreed to sell this square of ground to Frederick Camors.
The judgment of the civil district court of the parish of Orleans, of date May 1, 1894, affirmed by the Court of Appeals of said parish of January 6, 1896, ordering the testamentary executor to specifically perform the agreement to sell this square of ground to Frederick Camors, and the private sale of same to him, executed by said testamentary executor May 5, 1900, were absolute nullities, as the prior adjudication of the interests of the said minors in the said property to their mother was an absolute nullity, and the private sale of the minors’ property, except for the purpose of effecting a partition, is an absolute nullity.
The prescription of 5 years pleaded under article 3542 of the Civil Code, declaring that actions for the nullity or rescission of contracts, testaments, or other acts is prescribed by five years, does not apply to acts which are absolutely null, and the nullity of such acts cannot therefore be removed or cured by such prescription. Lagrange v. Barre, 11 Rob. 302 ; Brownson v. Weeks, 47 La. Ann.
Daniel Berry left a last will and testament, in which his wife, Elizabeth Berry, inherited-■one-fifth of one-half of his estate. After the death of Daniel Berry, Mrs. Elizabeth Berry married Arthur Climo, and, under article 1753 of the Civil Code, the portion of the estate bequeathed to her reverted upon the second marriage to the plaintiffs, the children of the first marriage. As this reversion took place by mere operation of law and during the lifetime of Mrs. Arthur Climo, surviving spouse of Daniel Berry, the plaintiffs acquired this property neither in the capacity of beneficiary heirs nor of unconditional heirs of their mother. The property reverted to them from their father’s estate.
By agreement of counsel in this case the judgment of this court is restricted to deciding the points of law presented, leaving to future proceedings the question of accounting between the parties for the value of improvements, rents, and revenues.
For the reasons assigned, the judgment appealed from is annulled, avoided, and reversed, and it is now ordered, adjudged, and decreed that there be judgment in favor of petitioners, Daniel Berry, Milton F. Berry, Edwin Thomas Berry, and Warren L. Berry, heirs of Daniel Berry and Mrs. Elizabeth Berry, deceased, and against the defendants, Mrs. Pauline Gebs, widow of John Wagner; Annie C. Wagner, feme sole; William S. Wagner; Thomas J. Cooke; Theodore Dumas'; Mrs. Alviva Laura Midelstadt, wife of Paul Lambert; Joseph A. Craven; Mrs. Rosa McQuade, wife of John Bacon; Dr. Harold L. Jensen; Capt. George Long; Charles E. Frank; Walter L.' Loubat; Catherine Purcell, widow of William Bayer; Josephine Waechter, wife of Peter'McMahon; Henry Sellen: Rosa Sellen, wife of Edward Prattini; Henry Sellen, Jr.; Edward Sell-en; John Sellen; the minors Hilda and Elizabeth Sellen, represented by their natural tutor, Henry Sellen; Elizabeth Kelley, widow by first marriage of James B. Nicholson, and widow by second marriage of Frank H. Kelley; Gustave Turner; Tobias Stafford; M. E. Reimmuth; William Bell; and Mrs. Henry Turner — recognizing petitioners Daniel Berry, Milton F. Berry, Edwin Thomas Berry, -and Warren L. Berry to be the lawful owners in indivisión with said defendants of five-tenths interest in and to the following described property, to wit: The square of ground No. 782 in the First District of the city of New Orleans, La., bounded by Gasquet, Palmyra, Solomon, and Carrollton avenue, and containing 40 lots, -measuring 499 feet 6 inches front on Palmyra street; 528 feet 1 inch and 5 lines front on Gasquet street; 321 feet 10 inches and 6 lines front on Carrollton avenue; 319 feet 7 inches and 6 lines front on Solomon street; and ordering said defendants to deliver possession of said property to said petitioners.
It is further ordered, adjudged, and decreed that there be judgment in favor of said petitioners, Daniel Berry, Milton F. Berry, Edwin Thomas Berry, and Warren L. Berry, and against defendants for five-tenths of the rents and revenues of said property from judicial demand, and that this case be remanded to the district court for the purpose of determining the question of accounting between said parties for the value of the improvements and the rents and revenues; appellees to pay the costs of both courts.
Rehearing
On Rehearing.
Plaintiffs have appealed from a judgment rejecting their demand, in
The land belonged to the marital community between Daniel Berry and his wife, Elizabeth Hogan Berry, mother of the plaintiffs here. Daniel Berry died in New Orleans in October, 1886, survived by the widow and four children. He left a will, bequeathing a fifth of his estate to his widow am| a fifth to each of his four children. The will was admitted to probate, and the widow was confirmed as testamentary executrix. She married Arthur Climo, and, thereafter, on the advice and recommendation of a family meeting, she was appointed tutrix of her four minor children. Subsequently, that is, on the 1st of March, 18S9, on the petition of Mrs. Climo, and on the advice and recommendation of a family meeting, the children’s interest — designated in the adjudication as two-fifths interest — in the community property was adjudicated to their mother, at the price of an appraisement made by experts appointed by the judge, and sworn by a deputy clerk of court. The adjudication was of the children's interest in 14 separate items of property, described as the twó-fifths interest in two whole squares of ground, one-half square, 8 lots in another square, and 11 lots in other squares, all being community property.
On the 2d of July, 1892, Mrs. Climo made a written contract of sale, or agreement to sell, to Frederick Camors, the square of ground now in contest. Because of the minor children’s mortgage on the property, there was some delay in carrying out the agreement of sale, and Mrs. Climo died before it was consummated. She had moved to Liverpool, England, where she died in 1903, leaving a will, bequeathing all of her property to her five sons, the four plaintiffs in this suit and a son of Arthur Climo. The will was admitted to probate in New Orleans, and P. F. Herwig, of this city, was confirmed and qualified as testamentary executor. Thomas Malynn was then appointed tutor of the four Berry children, plaintiffs in this suit; and, on his petition, an inventory was made of all of the property belonging to the four children. The first item on the inventory was the debt due by their mother’s succession, as the price at which their interest in the property of their father’s estate, including, of course, their interest in the property now in contest, had been adjudicated to their mother, which debt was appraised at the exact amount of the price at which the children’s interest in the property had been adjudicated to their mother, i. e.- $8,540.
One of the plaintiffs in this suit, Daniel Berry, having arrived at the age of majority, accepted his mother’s succession unconditionally, and, on the joint petition of himself and of Thomas Malynn, the latter as tutor of the three minor children, a judgment was rendered, on the 27th of June, 1909, sending Daniel Berry into possession of his share of the property of his mother’s succession, unconditionally, that is, without the benefit of inventory, and sending Thomas Malynn, as tutor, into possession of the share or interest of his wards, in the property of their mother’s succession, with the benefit of inventory.
In the meantime, on the petition of P. F. Herwig, as testamentary executor, certain property of the succession of Mrs. Climo, including the square of ground now in contest, was ordered by the court to be sold at public auction to pay the debts of the succession, and the property was adjudicated to a firm styled Reinach & Oteri. Two' days be
When the decree in favor of Camors and against Herwig, executor, had become final, he filed a petition in the succession of Mrs. Climo, averring that he had to comply with the decree, and that, in order to convey a clear title, it was necessary to cancel the mortgages recorded in favor of the minor children of Mrs. Climo, particularly the mortgage of $8,540, securing the price of the adjudication to her of the interest of the four children of Daniel Berry in the property formerly belonging to his estate, which, as we have said, included the square now in contest. The executor therefore prayed for and was granted an order convoking a family meeting to consider and advise whether the mortgages in favor of the minor children should be canceled, in so far as they affected the square of ground which the executor had been ordered to convey to Camors, being the square now in contest. The family meeting recommended that the mortgages should be canceled, in so far as they affected the property which the executor had been ordered to convey to Camors; and, on a judgment of court approving the recommendation, the mortgages were canceled, in so far as they affected the square of ground now in contest. Thereupon, on the 5th of May, 1900, Herwig, in his capacity of executor, signed a conveyance of this property to Frederick Camors—
“with all legal warranties, and with full substitution and subrogation in and to all the rights and actions of warranty which the said succession [of Mrs. Climo] has or may have [had or might have had] against all preceding owners and vendors.”
When Daniel Berry, the eldest of the plaintiffs, had arrived at the age of majority, Thomas Malynn resigned from the office of tutor, and, on the advice and recommendation of a family meeting, Daniel Berry was appointed tutor of his three brothers, and qualified as such. Malynn rendered an account of his tutorship, which was approved by the undertutor of the minors, and by Daniel Berry, who, in his capacity as tutor of his three brothers, received and receipted for the balance of the funds due them, $7,-802.50. The final account of Thomas Malynn, tutor, was, after due publication, approved by a judgment of court.
Four years before this suit was filed, when two of the brothers of Daniel Berry had attained their majority, and the third brother was emancipated by a judgment of court, they signed, before a notary public and two witnesses, an acknowledgment that they had received from their tutor, Daniel Berry, a full and complete accounting of his administration of their affairs, together with all vouchers relating thereto; that they had had the account and vouchers in their possession longer than 10 days, and, after examining them, had found them to be correct; that their tutor had accounted to them for all money, property, and effects of any and every kind that he had ever had in his possession or under his control as tutor, for their account; and that they therefore granted him full and complete acquittance and release, and authorized the cancellation of all bonds, liens, and mortgages in their favor.
Each of the defendants holds title, through mesne conveyances, from Frederick Camors, who, as we have said, bought the square of ground from the testamentary executor, Herwig, acting in obedience of the judgment commanding him to carry out the contract by which Mrs. Climo had obligated hebself to sell the property to Camors.
Plaintiffs claim that their mother had title for only a half of the property; that is, for the half interest which she owned as sur-, viving partner in the marital community. They claim that the tenth interest bequeathed to her by her first husband (being the fifth of his half interest in the community property) reverted to them, the children of the first marriage, when their mother married again. Article 1753 of the Civil Code declares that, if a widower or widow marries again, having children of the previous marriage, he or she cannot dispose of property that was given or bequeathed to him or her by the deceased spouse; and that such property, by effect of the second marriage, becomes the property of the children of the previous marriage, and the surviving parent then has only the usufruct of it.
Plaintiffs contend that the adjudication to their mother of their two-fifths interest (being the four-fifths of their father’s half interest) in the property was null because the adjudication was only of the children’s interest in the property. They contend that article 343 of the Civil Code requires that such an adjudication shall be made of the whole property, that is, of the interest already owned by the surviving parent, as well as of the interest of the minor child or children. The article declares that a person who owns property jointly or in common with his or her minor child or children may have it adjudicated, either in whole or in part, to him or her, the parent, at the price' of an appraisement made by experts appointed and sworn by the judge, after a family meeting shall have declared that the adjudi
Each of the defendants denied that there was any defect in the title of Mrs. Climo, to the property which she obligated herself to sell, and which her testamentary executor afterwards sold for her succession, to Frederick Camors. In the alternative, they pleaded that plaintiffs’ action was barred by the 'prescription of 10 years, under articles 2221 and 3478 of the Civil Code, and by the prescription of 5 years, under article 3542, barring actions for the nullity or rescission of contracts, testaments, or other acts. Defendants also pleaded that plaintiffs were es-topped by their acquiescence, after arriving at the age of majority, in the proceedings had in the succession of their deceased father and mother, and particularly by their acquiescence in the judgment ordering the executor of their mother’s estate to sell the property to Frederick Camors, in compliance with the contract which plaintiffs’ mother had made. Defendants also pleaded, especially, that plaintiffs were estopped by the settlement which they had made with their tutor, after they had arrived at the age of majority, receiving and retaining the balance of the money that was coming to them from the succession of their father and from the succession of their mother. Defendants pleaded finally that plaintiffs were bound and precluded by the obligation of their deceased mother to warrant, and defend the title which she had contracted to convey, and which the executor of her estate afterwards conveyed, to Frederick Camors. Each defendant, and, in turn, each warrantor, therefore, called in warranty, and prayed for judgment against, his or her vendor, until the plaintiffs in this suit, as the representatives of their mother’s succession, were called in warranty to defend the title which she had obligated herself to defend. Therefore, if the plaintiffs have tacitly assumed their mother’s warranty obligation, they are in the anomalous situation of having to defend this suit which they brought.
In the case of Sevier v. Gordon, 29 La. Ann. 442, it was said:
“It is true that minors are beneficiary heirs; that beneficiary heirs are entitled to the residuum only, after the debts of the succession are paid; and that they are not personally liable for the debts of the succession. It is equally true that the beneficiary heirs, when they attain their majority, may become heirs purely and simply, and may obtain possession as owners of the property of the succession, and be liable for its debts.. In this case the heirs provoked a partition, and went into possession. The succession thereupon ceased to exist; and those who were originally beneficiary heirs, because of their minority, became absolute heirs, and liable, each for his virile share, personally and unconditionally, for the debts of the succession which had not been paid.”
It is true the three plaintiffs who did not expressly^ accept their mother’s succession unconditionally received only the residuum of her estate. But the residuum would have been that much less if their mother’s succession had been compelled to make good her warranty obligation to Frederick Camors, or his transferees, before the succession was closed by the voluntary act of th'e heirs, when they had attained their majority, in accepting the balance due them from their tutors and discharging him. There remained unsatisfied then this warranty obligation of the succession of plaintiffs’ mother, which they cannot repudiate. It is a matter of no importance that they did not have that obligation in mind when they accepted the re
In the case of Chevalley v. Pettit, 115 La. 407, 39 South. 113, on rehearing, this court expressed the opinion that heirs who had inherited the estate of their deceased uncle, not directly, as his nearest of kin, but by representation of their predeceased mother, a sister of the deceased uncle, were not bound by a warranty obligation of their deceased mother. The opinion was founded up-on the fact that the heirs had not accepted the succession of their mother, had not inherited anything from her, but had inherited only the estate of their uncle, who was not under any warranty obligation. The decision, therefore, is not in conflict, but in accord with the decisions which we have cited.
Appellants rely upon certain expressions of opinion in the case of Tessier v. Roussel, 41 La. Ann. 474, 6 South. 542, 824, which, however, we do not consider appropriate to-the case before us. The only question before the court in Tessier v. Roussel was whether the minor children of one Philomon Guidry, Jr., who was yet living and insolvent, might, at his death, have a right of action to reduce to the disposable portion a donation which Guidry had made to his father. The -principal argument against the contention that the heirs might some day inherit such right was that they would be constrained by a warranty obligation on the-part of their father to defend the title, resulting from certain judicial sales made in suits to which he had been a party. Answering the argument, Mr. Justice Fenner, for the court, said:
“Finally, it is, claimed that the obligations of warranty imposed upon Philomon Guidry, Jr., as the effect of the judicial sales-made in the suits to which he was a party, will forever es-top even Ms forced heirs from assailing the title of the purchasers at said sales. In other-words, the claim is that if the forced heirs of Guidry, Jr., should bring their action of reduction against Roussel, the latter Could repel it by opposing to them their obligation as heirs of their [his] warrantor to protect him against eviction, under the maxim: ‘Quern de evictione tenet actio eundem agentem repellit exceptio.’
“This contention might be sound if the forced heirs should accept the succession of Guidry, Jr., purely and simply; but, by operation of law, minor heirs accept only with benefit of inventory, and major heirs have the privilege of so accepting, which they would undoubtedly exercise in the case anticipated. * * *
“This right of action [of the forced heirs, to-reduce to the disposable portion a donation made by their ancestor] is not derived from the deceased. The deceased had no such right. His donation was perfectly binding as to him. Neither he, nor his creditors, nor his simple heirs, nor any person succeeding only to his rights, could attack it.
“The right of reduction is conferred directly on the forced heirs by the law, as one personal to them, which can be exercised by them alone and solely for their own benefit, so much so that even when the property is revendicated,.*477 the creditors of the succession have no claims upon it, but it passes to the forced heirs free from all succession debts and charges. On the other hand, the obligation of warranty is one personal to the deceased, binding on him and on his succession, and like all other obligations, .must look for satisfaction to that source alone.
“The beneficiary heir is not bound by it beyond the value of the extant * * * effects and may discharge himself entirely by simply abandoning the latter to the creditors.”
The reason why a person cannot, by any warranty obligation on his part, deprive his forced heirs of their légitime, or of their eventual right to sue to reduce to the disposable portion any excessive donation made by him, is that the légitime is reserved by the law itself, not by the grace of the ancestor, but in spite of him. If it were not so — if this reserve in favor of the forced heirs could depend upon the will or voluntary act of the ancestor — the law. on ’the subject would be stultified. But the plaintiffs in this case, although they are the forced heirs of their parents, are not suing as such, or asserting a right which the parents could not have deprived them of.
It is argued on behalf of appellants that they are exempt from any obligation of warranty on the part of their mother, in this case, because they are not claiming any interest in the property by inheritance from her, but are claiming only the interest which they inherited from their father. If appellants were now claiming an interest in the property by inheritance from their mother, the suit itself would be an unconditional acceptance of her succession. Rev. Civ. Code, 988 ; McQueen v. Sandel, 15 La. Ann. 140 ; Brashear v. Conner, 29 La. Ann. 347 ; Sevier v. Gordon, 29 La. Ann. 440 ; McCall v. Irion, 41 La. Ann. 1126, 6 South. 845 ; Heirs of Ledoux v. Lavedan, 52 La. Ann. 354, 27 South. 196. But the institution of a suit by an heir claiming title as such is not the only means of accepting a succession tacitly; for the Code says (article 988) that an heir accepts the succession tacitly when he commits any act which necessarily implies his intention to accept, and which he would have no right to commit except in his capacity as heir.
Our conclusion that the plaintiffs in this suit have no right of action, and that the judgment appealed from, rejecting their demand, is therefore correct, does away with the defendants’ pleas of prescription, and other defenses.
The judgment appealed from, rejecting plaintiffs’ demand, is affirmed, at their cost.