2 Mart. (N.S.) 73 | La. | 1824
delivered the opinion of the court. The petitioners state, that one of them, Marie Antoinette A. Daquin, wife of Jean Agaisse, is the legitimate daughter of Francois Daquin, and Francoise Barbe, both deceased : that on the death of her mother who died first, she inherited all her property, among which were several slaves, who remained in the possession of her father and tutor Francois Daquin; that at her decease they came into the hands of her uncle Thomas Da-quin, who was appointed her tutor, and by whom they were sold to pay a debt alledged to be due by one of the petitioners Marie Antoinette, as heir of her mother, to one Marie Therse Fournier, widow Rouset.
That at the sale of the property widow Rousset, the supposed creditor, became the purchaser of six negroes for a sum much inferior to the amount of her pretended claim, that she afterwards sold three of them for $1000, and remained in possession of the other three until her death, when they were dis
The defendants plead that the mother of Eugenie Rousset, wife of Guedron by a first marriage with Mr. Barbe, had three children, among which were Francois, the mother of the petitioner ; that after the death of Barbe his widow was entitled to three fifths, and his children to two fifths of the property left at his death which provided an income of 15990 livres per annum. That this estate was left in possession of the children by their mother, in consideration of the sum of 6000 livres to be paid her annually. That Ursule and Francoise Barbe died, and that the mother of the petitioner by virtue of testaments made by her
They aver that the petitioners owe them the one third of the balance still due widow Rousset after deducting the price of the slaves just mentioned in the same proportion.
The sale now sought to be set aside was made by the second tutor, at a time when according to the provisions of the Civil Code, actutors were directed to make an inventory within ten days after their appointment, and within the same period after the inventory, to proceed and sell the property of their ward, C. Code, 68, Aarts. 54 & 56.
This sale is contended to have been illegal, because the provisions of the law only apply to
If it should be found on a further examination that the articles of the code already referred to, apply to this case, we do not see that the objection raised to their having a retrospective operation can have any weight; because the legislature had as much right to direct that minors property should be sold on a chauge of tutors, as on the first appointment of one. The circumstance of the estate being already in the hands of a tutor could not prevent the legislature from directing that subsequent to the passage of the law the property should be administered in such manner as they thought necessary to prescribe.
The real question here is whether the legislature have provided for such a case as that now before us. If we follow the letter of the law, there is no doubt they have ; for it does not distinguish between first and second tutors, or whether the property came into the hands of the second, through those of the first, or from any other source. The directions con
It has been contended that it was not necessary to make an inventory, because the second tutorship was but a continuation of the first. To test the correctness of this position, we have only to examine whether the second tutor is responsible for all the property inventioned by his predecessor? and for nothing more? now it appears clear to us that if the first tutor wasted the property which had come into his hands and did not deliver it over, the second would not be responsible for that which he did not receive. If on the contrary there were effects handed over to the second, which the first had failed to make inventory of-the former would certainly be answerable for them. The safety therefore of all parties rendered such a measure indispensable, and this brings us to the last point made on this part of the case-that inventoring and selling property which the child inherited from the mother without distinguishing that which descended from the
We have looked a good deal into the books that treat on this matter, and we have not been able to find any positive rule of law which requires this distinction to be made in the inventory, or which authorizes us to declare the sale null if it be omitted. The law require all the property to be inventoried-and that was done here. In the absence of any express rule on the subject we have neither the power nor wish to introduce one. Minors are already sufficiently guarded by the direct commands of the law, without the court being under the necessity of protecting them by a construction which would multiply the dangers and difficulties of purchasing their property. Whether the objects sold had been inventoried, as that of the father, or the mother, the result must have been the same.
But it is still urged the sate must be rescinded even admitting the forms of law to have been strictly pursued, because there was lesion in the contract, and that in such case the minor can claim the benefit of that remedy known to the Spanish, and yet existing in our jurisprudence called restitutio in integrum.-
The remaining question is, whether the defendants have paid for this property. In their answer,as we have already seen, they set up a debt due by the plaintiff to widow Rousset the ancestor of one of them, and the person as heir to whom they are sued It has been objected to this claim, that it is not liquidated, and can not be pleaded in compensation to the demand on which the petitioner has brought his action. We agree with the appellee that it is not such a debt as produces the effects of compensation, but we think that notwithstanding it has not that effect, it may be offered by way of reconvention. We gave this subject a great deal of consideration, in the case of Evans vs. Gray, and are quite satisfied with the decision then pronounced. If the plaintiff sues for a sum of money when, at the same time, he is indebted to the defendant in an amount, which though not liquidated, is yet as large as that demanded;
As the court below did not pass on this plea, and as the evidence sent up does not enable us to come to any satisfactory result on the merits the cause must be remanded for a new trial.
It is therefore ordered, adjudged, and decreed, that the judgment of the parish court be annulled, avoided, and reversed, & it is further ordered, adjudged, and decreed, that the case be remanded for a new trial, and that the appellee pay the costs of this appeal.