The opinion of the court was delivered by
Breaux, J.
Mrs. Kate Farelly, the plaintiff and appellant, was granted a writ of injunction against the Metairie Cemetery Association; also, against the sexton of the cemetery, and against the Sisters of St. Mary’s Boys Orphan Asylum.
In her original petition she alleged that she is the sole heir of Mrs. Mary Burke, her late aunt, who was the owner of a tomb in Metairie Cemetery, which, by her will, was left in charge of the Sisters of the asylum before mentioned, for the burial of the members of her family.
That the defendants had given authority to bury in this tomb a deceased person not related to her family, and that his remains would be placed therein unless defendants are enjoined.
In a supplemental petition she alleged error in her original petition, in having alleged that she is the sole heir, there being other heirs and legatees.
There was no objection made during the trial to this supplemental petition; not supported by affidavit or bond. It was placed at issue by answer and is now properly part of the pleadings.
In their answer, the defendants aver that plaintiff is without title or interest in the tomb claimed by her.
That it was paid for by Edward Burke, the deceased husband of the late Mary Burke, or by the executor of his will.
[31]*31That if this tomb was a part of the property of the succession of the late Mary Burke, it was left, by her will, in the care and charge of the Sisters of St. Mary’s Catholic Boys Asylum.
The Sisters of this asylum, without their consent and in error, having been joined in this answer with the other defendants subsequently presented a separate defence, in which they alleged that they are absolutely without interest, as the St. Mary’s Catholic Boys Asylum is a chartered institution, of which they are not the legal representatives. This asylum is represented by the board of directors.
On the trial it was proven that Edward Burke died in June, 1880. His heir is a daughter, Mrs. Goddin. By last will, he appointed Augustine Burke his executor, and made him his residuary legatee.
In September, 1-880, five lots of ground, containing 360 superficial feet, were purchased for the sum of $500, and the title issued in the name of Mrs. E. Burke.
Plaintiff’s witness, the president of the association, testifies: “ The title to lots in the cemetery is made out to the one to whom the party paying for them directs, and that the appearance of the latter, as the party signing the deed of purchase, is not required.”
Another witness for plaintiff identified the lots, and is the one who contracted for the tomb in which the remains of Mrs. Burke now lie, and testifies to its being the Burke tomb.
The secretary of the St. Mary’s Boys Asylum testifies that on reading Mrs. Burke’s will they were informed that their board had charge of the tomb, but as they had never been authoritatively placed in possession of the tomb, they never took any special step in the premises.
By him it was proven that application had been made to place the body of Mrs. Ethelred Stafford, a niece of E. Burke, in the Burke tomb.
He wrote in answer that the asylum could not raise any objection to the use of the tomb by actual relatives of Mrs. Burke. The plaintiff does not oppose the placing the remains of Mrs. Stafford in the tomb. The contention arises in opposition to placing the remains of her husband, Ethelred Stafford, in that tomb. '
A receipt was filed in evidence showing that the executor of B. Burke’s estate paid at one time $1000 “on account of tomb built for the estate.”
[32]*32The entire cost of the tomb, viz., $3150, was paid for by the executor of that estate, with the written approval of Mrs. Burke and of Mrs. Goddin, his daughter.
The executor filed a final account, which was opposed by his widow, in which she claimed to be refunded the amount paid by her for the lots. i. e., the said $500 paid by her for the succession of Ed. Burke.
Mrs. Burke died in 1884.
She bequeathed one-eighth of her property to the St. Mary’s Boys Asylum, and left the tomb in charge of that institution.
The plaintiff also was one of her legatees.
Plaintiff pleads the authenticity of the transfer to Mrs. Burke under Sections 385 and 387 of the R. S., and that it can not be defeated by parol.
The defendants contend that under the rules and regulations of the association, all interments in lots in the cemetery are restricted to the members and their relatives, and that it devolves upon them to enforce these rules and regulations.
It is admitted that the Sisters of St. Mary’s Boys Orphan Asylum were made parties in error, and that they are without any interest in the suit.
Judgment was rendered in favor of defendants dissolving the writ of injunction.
An application for a new trial was made and overruled.
The motion for a new trial relates that the copies of deeds issued to Mrs. Burke were not introduced in evidence for the reason that they could not be found, as they were in the possession of the executor of Mrs. E. Burke’s estate, who did not know that he had them.
The plaintiff objected to a question to the president of the Metairie Association, propounded with reference to the entry in their books, in the name of an individual, not necessarily showing ownership, on the grounds that they are estopped by the recitals of the deed of sale, and that parol evidence is not admissible.
The first ground relating to estoppel will be hereafter considered. As to the second, the testimony being verbal, will not be considered in determining the rights of the parties, in so far as it does not refer to facts testified to by the witness when he was examined in chief. This witness for plaintiff testified: “ When a party comes in and pays for a title, we make out the title to whoever he directs; of course we know no one except the party he names. If he takes [33]*33another man’s money and asks us to make the title in his name, we issue it in his name as we would in any one else’s.”
The record discloses that the title issued to Mrs. Burke.
That the tomb was paid for by the estate of the husband.
It was intended as a family tomb by Mrs. Burke, and by the heirs of her husband.
In this tomb their remains should rest undisturbed. They are now protected by the rules and regulations of the Cemetery Association.
She bequeathed one-eighth of her property.to the St. Mary’s Boys Asylum, from which a round sum was realized, and directed in her will that the constituted authorities of that asylum should have charge of the tomb.
They have not been made parties to this suit.
The authentic character of the recital from the defendant’s books and of the title issued are relied upon by the plaintiff.
The defendant association is bound by these and can not be heard to deny any of its acts in matter of the issuance of this title.
But if it be shown by competent evidence that Mrs. Burke was not the owner, the defendant company can take notice of the fact and invoke its rules, maintaining the rights of the members.
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The opinion of the court was delivered by
Breaux, J.
Mrs. Kate Farelly, the plaintiff and appellant, was granted a writ of injunction against the Metairie Cemetery Association; also, against the sexton of the cemetery, and against the Sisters of St. Mary’s Boys Orphan Asylum.
In her original petition she alleged that she is the sole heir of Mrs. Mary Burke, her late aunt, who was the owner of a tomb in Metairie Cemetery, which, by her will, was left in charge of the Sisters of the asylum before mentioned, for the burial of the members of her family.
That the defendants had given authority to bury in this tomb a deceased person not related to her family, and that his remains would be placed therein unless defendants are enjoined.
In a supplemental petition she alleged error in her original petition, in having alleged that she is the sole heir, there being other heirs and legatees.
There was no objection made during the trial to this supplemental petition; not supported by affidavit or bond. It was placed at issue by answer and is now properly part of the pleadings.
In their answer, the defendants aver that plaintiff is without title or interest in the tomb claimed by her.
That it was paid for by Edward Burke, the deceased husband of the late Mary Burke, or by the executor of his will.
[31]*31That if this tomb was a part of the property of the succession of the late Mary Burke, it was left, by her will, in the care and charge of the Sisters of St. Mary’s Catholic Boys Asylum.
The Sisters of this asylum, without their consent and in error, having been joined in this answer with the other defendants subsequently presented a separate defence, in which they alleged that they are absolutely without interest, as the St. Mary’s Catholic Boys Asylum is a chartered institution, of which they are not the legal representatives. This asylum is represented by the board of directors.
On the trial it was proven that Edward Burke died in June, 1880. His heir is a daughter, Mrs. Goddin. By last will, he appointed Augustine Burke his executor, and made him his residuary legatee.
In September, 1-880, five lots of ground, containing 360 superficial feet, were purchased for the sum of $500, and the title issued in the name of Mrs. E. Burke.
Plaintiff’s witness, the president of the association, testifies: “ The title to lots in the cemetery is made out to the one to whom the party paying for them directs, and that the appearance of the latter, as the party signing the deed of purchase, is not required.”
Another witness for plaintiff identified the lots, and is the one who contracted for the tomb in which the remains of Mrs. Burke now lie, and testifies to its being the Burke tomb.
The secretary of the St. Mary’s Boys Asylum testifies that on reading Mrs. Burke’s will they were informed that their board had charge of the tomb, but as they had never been authoritatively placed in possession of the tomb, they never took any special step in the premises.
By him it was proven that application had been made to place the body of Mrs. Ethelred Stafford, a niece of E. Burke, in the Burke tomb.
He wrote in answer that the asylum could not raise any objection to the use of the tomb by actual relatives of Mrs. Burke. The plaintiff does not oppose the placing the remains of Mrs. Stafford in the tomb. The contention arises in opposition to placing the remains of her husband, Ethelred Stafford, in that tomb. '
A receipt was filed in evidence showing that the executor of B. Burke’s estate paid at one time $1000 “on account of tomb built for the estate.”
[32]*32The entire cost of the tomb, viz., $3150, was paid for by the executor of that estate, with the written approval of Mrs. Burke and of Mrs. Goddin, his daughter.
The executor filed a final account, which was opposed by his widow, in which she claimed to be refunded the amount paid by her for the lots. i. e., the said $500 paid by her for the succession of Ed. Burke.
Mrs. Burke died in 1884.
She bequeathed one-eighth of her property to the St. Mary’s Boys Asylum, and left the tomb in charge of that institution.
The plaintiff also was one of her legatees.
Plaintiff pleads the authenticity of the transfer to Mrs. Burke under Sections 385 and 387 of the R. S., and that it can not be defeated by parol.
The defendants contend that under the rules and regulations of the association, all interments in lots in the cemetery are restricted to the members and their relatives, and that it devolves upon them to enforce these rules and regulations.
It is admitted that the Sisters of St. Mary’s Boys Orphan Asylum were made parties in error, and that they are without any interest in the suit.
Judgment was rendered in favor of defendants dissolving the writ of injunction.
An application for a new trial was made and overruled.
The motion for a new trial relates that the copies of deeds issued to Mrs. Burke were not introduced in evidence for the reason that they could not be found, as they were in the possession of the executor of Mrs. E. Burke’s estate, who did not know that he had them.
The plaintiff objected to a question to the president of the Metairie Association, propounded with reference to the entry in their books, in the name of an individual, not necessarily showing ownership, on the grounds that they are estopped by the recitals of the deed of sale, and that parol evidence is not admissible.
The first ground relating to estoppel will be hereafter considered. As to the second, the testimony being verbal, will not be considered in determining the rights of the parties, in so far as it does not refer to facts testified to by the witness when he was examined in chief. This witness for plaintiff testified: “ When a party comes in and pays for a title, we make out the title to whoever he directs; of course we know no one except the party he names. If he takes [33]*33another man’s money and asks us to make the title in his name, we issue it in his name as we would in any one else’s.”
The record discloses that the title issued to Mrs. Burke.
That the tomb was paid for by the estate of the husband.
It was intended as a family tomb by Mrs. Burke, and by the heirs of her husband.
In this tomb their remains should rest undisturbed. They are now protected by the rules and regulations of the Cemetery Association.
She bequeathed one-eighth of her property.to the St. Mary’s Boys Asylum, from which a round sum was realized, and directed in her will that the constituted authorities of that asylum should have charge of the tomb.
They have not been made parties to this suit.
The authentic character of the recital from the defendant’s books and of the title issued are relied upon by the plaintiff.
The defendant association is bound by these and can not be heard to deny any of its acts in matter of the issuance of this title.
But if it be shown by competent evidence that Mrs. Burke was not the owner, the defendant company can take notice of the fact and invoke its rules, maintaining the rights of the members.
Changes may take place, transfers may be made, agents may have acted in their own names and afterward acknowledged the titles of their principals, the tomb may be owned by another than the owner of the land.
In all these possible occurrences the defendant company is not es-topped from applying its rules so as to carry out the intention of the organization.
The trust is important.
The association should not be held estopped unless grounds are manifest and conclusive.
If by her acts or declarations Mrs. Burke has conclusively shown the ownership to be in her husband’s estate, this fact can be established at defendant’s instance.
If, as contended by the plaintiff, the evidence is parol, it can not prevail against the title as issued.
But if, by written evidence, it be proven that the price was paid by the executor, from the husband’s estate, the plaintiff is without right of action.
[34]*34The tomb was paid for by the estate of the husband.
The payment was made by the executor, not as a loan to Mrs. Burke, but in satisfaction of the price, as shown by her written approval.
As to the lots, she filed an opposition, claiming the amount paid by her.
Counsel for the defendants states that this opposition has been maintained; that the amount was paid to Mrs. Burke.
There is no evidence of payment of record. The payment is not denied by plaintiff’s counsel.
As to the plaintiff, it is manifest that whether Mrs. Burke has been paid or not, she is without right, for the tomb has been placed in charge of the St. Mary’s Boys Asylum. If the land is not paid, its value, relative to the tomb, is small, of which plaintiff would own only a fractional portion, were her claim allowed. In any event, be the interest what it may, Mrs. Burke has shown a regard for the memory of her husband which strongly appeals to the equity of the court.
Her remains are now near his.
Her will, as expressed, should be respected and the charge complied with by the St. Mary’s Boys Asylum legatees and beneficiaries.
With the consent of that authority, the defendant association can act in matter of enforcing their said rules and regulations.
In her motion for a new trial, plaintiff alleged diligence in her attempts to procure needful evidence.
Questions of diligence in procuring evidence is left in great part to the District Court.
The plaintiff’s oath that another did not know that he had these title deeds is not sufficient to entitle her to a new trial.
She testified as a witness that they had been delivered to the executor, or were seen in his possession.
He was not called upon during the trial to testify with reference to his possession of these titles.
Our conclusions, as above expressed, do not make it necessary to amend the judgment appealed from.
Judgment affirmed at appellant’s cost.