9 La. Ann. 74 | La. | 1854
Lead Opinion
I have doubts whether, under the circumstances of the case, the notes having been received by Paahwood in New York, where he and his wife were then domiciled, and being there in his possession after her death, a half interest in them vested in her heirs. Assuming, however, that such an interest, vested in her heirs on her death, grave difficulties remain.
I concede that this matter is not res judicata against Mrs. Morton. But this very subject of rescission of the sale to Stewart, has been solemnly decided by the Supreme Court, after elaborate argument, in the case of Paahwood's succes
I understand the opinion of Mr. Justice Ogden, as conceding the title was not in the heirs, unless they chose to adopt and ratify the unauthorized action of Pachwood. But if they could so adopt and ratify, ought their election under the circumsiances to retroact so as to defeat the title previously acquired by White and Trufant ? It seems to me it should not.
I am therefore of opinion that the judgment should be affirmed.
This sale and reconveyance is made for and in consideration of the sum of one dollar, and of the return and delivery to him, the said Da/oid Stewart, of six promissory notes amounting to one hundred thousand dollars, recited and mentioned in the aforesaid act of sale from the said Sa^mel Pack-wood to the said David Stewart; the receipt of which said sum and the delivery to him of the aforesaid notes, the vendor hereby acknowledges. Extract from conveyance of Stewart to Pachwood, of the 9th October, 1843.
Dissenting Opinion
dissenting, with whom concurred Buchanan, J. The material facts which gave rise to the important questions presented in this suit, may be found stated at length in the reported cases of Succession of Alice Packwood, 9 Rob. Rep., 438 ; Succession of Packwood, 12 Rob. Rep., 334, and Morton et al. v. Packwood et al., 3 Ann., 170.
The present .plaintiffs are the assignees of the rights of Mary and Ann Paah-wood, wife of George 0. Morton, and one of the heirs of Alice Paclmood. She was one of the parties in the case referred to of Morton et al. v. Packwood et al. In that suit she, in conjunction with her co-heirs, all children oí Alice Pachwood, sot up a claim against the defendant, their father, to recover seven-tenths of an undivided moiety of a plantation called Myrtle Grove, and slaves, in the parish of Plaquemines, alleged to belong to the community which existed between their father and mother. The claim was resisted by a plea of res ju-dicata, which was sustained in regard to all the plaintiffs except Mrs. Morton, and her assignees have now revived the suit for that portion of the one undivided moiety of the property to which she would be entitled if it is held to belong to the community. The grounds on which the claim in this case rests, are the same in every respect as those which are made the basis of the claim heretofore set up by the co-heirs of Mrs. Morton, and which was decided adversely to them in the case referred to of the Succession of Packwood, decided in 12 R. R.
The plaintiffs allege that Paclmood and wife were married in the State of Connecticut, and in 1804 they removed to the State of Louisiana, where they resided until 1836, when they removed to New York, and while residing there Mr. Paclmood died in 1840. That while they resided in Louisiana, they acquired a large property, all of which belonged to the community. That, on the 23d of May, 1840, Paclmood sold the property in controversy, belonging to the community, to David Stewart, of Baltimore, for $100,000, payable in six equal instalments, for which notes were given. It is averred this sale was simulated, and did not change the title to the property. It is further alleged that if it was a real sale, the property reverted to the community by virtue of a retrocession
Oliver & Truefant, purchasers of the property from Paakwood, since its retro-cession to him by Stewart, and the other heirs of Alice Paahwood, are made defendants in the suit, and several grounds of defence are set up, which we shall notice in the order in which they are presented.
The first, is the plea of res judicata, which it is* attempted to sustain, by showing that in 1844 some of Mrs. Morton's co-heirs presented a petition calling on PacleiBOod, as executor of his wife, for an account; which account was rendered and duly advertised. That an opposition was made to it by the other heirs, on the grounds of the present action, and that the opposition was overruled, and the judgment overruling it sustained by the Supreme Court, on appeal. Mrs. Morton was not cited in those proceedings; she was in no manner a party to them; and her rights could not be in any manner affected by the judgment homologating the executor’s accounts. It is contended that the executor had a right to consider Mrs. Morton constantly in court as regarded all proceedings conducted by the counsel of Paakwood, because his counsel were also the agents and counsel of Mrs. Morton, and instructed not to oppose his claims. I am not aware that such a purely constructive presence in court, as that would be, has ever been held to constitute a person a party to a suit. The principle is well settled that either a citation to appear or an actual appearance in court is indispensable to affect the rights of a party by judicial proceedings, except in the case of creditors, where the law has declared public advertisement of notice to them to oppose an acccount equivalent to citation. The plea of res judicata is entirely unsupported.
The next ground of defence is that of estoppel. It is urged that if the circumstances do not justify the plea of res judicata in its technical sense, yet the plaintiffs, as assignees of Mrs. Morton are estopped from asserting this claim, because the adverse rights of Samuel Paakwood were set up by her agent, with her consent and direct approval. To sustain this branch of the defence, counsel have called our attention to throe letters in the record. The first is a letter from Mrs. Morions husband to Henry Lockett, Esq., dated 17th October, 1840, in which he says that at the request of his father-in-law, Samuel Paclmood, he encloses him a power of attorney from Mrs. Morion and himself, to represent them in the division of the estate, and makes enquiry whether his wife is entitled to half of certain bank stock of Mr. Paakwood, and to any monies deposited in bank, previous to his wife’s death. A reply to that letter is written by Loakett <& Miaou, as follows:
“We find that some of the other heirs of Mrs. Paakwood who have a common interest with you, have employed separate counsel, and that questions are likely to arise between them and Mr. Paakwood in the settlement of the estate. As we are specially engaged by Mr. P., you will perceive that the acceptance of your procuration might involve us in the representation of opposing interests; Mr. L. would, therefore, prefer that you should send a power to some other person.”
On the 5th December, 1840, Mr. Morton replies :
“Your favor of 28th ult. has been received, and I duly appreciate the motives of honorable delicacy under the influence of which it was written. This only serves to confirm me in the selection of you, Mr. Loakett, as the agent of Mrs. Morton, and I beg, therefore, that the power may be executed according to my
Under these instructions, Henry Loehett presented his petition to the court on the 17th March, 1841, praying the recognition of Mrs. Morton as heir, and of himself as her agent; and a judgment was entered accordingly on the 31st of the same month.
Lockett & Mieou also acted as the attorneys of Samuel Paokwood as executor of his wife, and on their petition as such, an inventory of the succession was ordered, and made on the 24th December, 1841. On the making of this inventory, Henry Loeliett appeared as agent of Mrs. Morton, and signed it. The inventory did not contain any reference to the .Myrtle Grove plantation, or its crops; and on this ground Dorsey & Neville, representing two other heirs, protested against it. But Mrs. Morton did not join in the protest, and the inventory was homologated by a judgment of the court.
These are the material facts from which it is urged that it would be contrary to equity and good conscience for Mrs. Morton to set up a claim to this property against Oliver & Truefant, who, it is said, had a right to suppose when they became the purchasers of the property that, from these acts of Mrs. Morton and her husband, they did not pretend to any claim whatever on the property. Considering that, when the above letters were written, the retrocession of the property from Stewart to Paokwood had not been made; considering that the right now set up, if existing, is purely the creature of the law, I am at a loss to comprehend why the willingness of Mrs. Morton, at the instance of her father, to employ for herself the same counsel employed by him, should involve her in the loss of her rights, by the silence and inaction of herself or her agents. These pleas being disposed of, it remains to consider the question of title presented by the facts, as before stated.
There is no evidence whatever of the deed from Paoimood to Stewm't being-simulated. The stipulation which is proved to have existed, securing to the purchaser the pi-ivilege of canceling the sale at any time before the final payment of the whole purchase money, upon a proper allowance of indemnity to Paokwood, the seller, did not render the contract null. The right to cancel the sale depended upon a proper allowance of indemnity to Paokwood, and this was not a potestative condition. Touillier, vol. 6, 497. Duranton, vol. 2, No. 30. The last and most important question in the cause, is the effect of the act of retrocession made by Stewm't to Paokwood. The case decided in 12 Rob. R, is direct on this point, and if the decision is correct, it settles the controversy. The learned Judge, now deceased, who was the organ of the Court when that decision was made, uses the following language: “There is no doubt that in cases of retrocession, properly speaking, the effect is to re-invest the title, as if no alienation had taken place; but that presupposes that the capacities of the contracting-parties remain unchanged. Now, according to the pretensions of the heirs of Mrs. Paokwood, her right to one-half of the notes, representing the price of the plantation, became, on her death, irrevocably vested in her heirs; and we repeat that Paokwood ceased to represent a community and the heirs of his wife.” From these premises, is it a legal conclusion that the retrocession did not have the effect which it is admitted by the Court it would otherwise have had, of reinvesting the title, as if no alienation had been made ? As Paokwood, at the
When Packwood sold the property, although as head and master of the community, he had a right to soil it, even without the consent of his wife ; yet he sold it for her as well as for himself, because it was common property. If she had been living when the sale was canceled, on account of the non-payment of the price, Packwood would have been considered, in the ey e of the law, representing his wife, as partner in community, in the act of retrocession as well as in the original sale ; but the wife died before the retrocession, and her heirs became immediately seized of her rights. Why should a different effect be produced, because the moiety of the price then belonged to the heirs instead of to the wife? Under that change of circumstances, without the consent of the wife’s heirs, Packwood was perhaps incompetent to make the contract of rescission ; but as only half of the price of the property belonged to him, and the consideration for rescinding the sale, was the canceling of all the notes constituting the whole price, he must be considered as having undertaken to represent the heirs of his wife, and as having their title re-invested, as well as his own. By claiming the property, the heirs ratified the act. The legal consequences of the rescission of the sale, which fix the character of the title to the property, seem to me to bo entirely independent of the right of Packwood to represent the heirs of his wife. If it be one of these consequences of a rescission of the sale, on account of the failure of the purchaser to pay the price, to replace the parties in the same situation as if the sale had never taken place, it follows that the property, when retroceded to Packwood, must be considered as held by the same title as that by which he possessed it, at the date of the transfer to Stewart, which was a title in community.
On this subject, Touillier, in his Treatise on Obligations, says, that rescissions and even dissolutions of contracts, for a cause, going back to the origin of the agreement, are not considered as alienations properly so called, but rather as a return to thp former ownership which has not ceased to exist, or was only suspended. This principle he applies to the case of a dissolution of a sale for want of payment of the price, which he says is a cause going back to the origin of the contract, as the sale is always made under the condition expressed or implied, that the price shall be paid. See Touillier, vol. 4, Nos. 639, 648 and 660. Table 3, Contracts et Oligations conventionable.
The article 2040 of the Civil Code, declares that the dissolving condition, when accomplished, operates the revocation of the obligation, and places matters in the same state as though the obligation had not existed. Packwood had a
It is contended by defendant’s counsel that the contract between Packwood and Steioart .was not a rescission of the sale, but a re-salc for a new consideration : that a sum of $2,800, in addition to certain sums recovered by suit, together with the property, was given by Stewart to Packwood, as a consideration for the return of his notes. Stewart had enjoyed the revenues of this plantation from the time of the sale, in 1840, until July, 1843. These revenues he was bound to return, as one of the effects of his failure to pay the price, and the consequent rescission of the sale. The evidence satisfies me that all the money paid by Steward formed part of the revenues received by him from the property; and from a letter of Packwood to his counsel, it is evident that the $2,800 was paid only as compromise or settlement of the amount thus due by Stewarrt. The argument which has been urged, that, at most, Packwood could only be viewed in the light of a trustee for the heirs of his wife, having used their half of the price in procuring the retrocession from Stewa/rt, assumes that it was a purchase of the property from Stewart, when according to my opinion, it was merely an act reinstating PacJcwood in his original title. His vendees were hound to ascei’tain the nature of that title, at the date of the transfer to Stewcm't, and they incurred only the same risk which every purchaser, under our system of community incurs, as the title to property of the community is generally taken in the name of the husband alone, it being, in my opinion, the legal effect of the rescission of the sale to Stewart to place the title where it originally was in the community, the title of the heirs of Mrs. Packwood must he considered as a legal and not merely an equitable title ; but if it were properly to be regarded as an equitable title only, Oliver & Truefant were not purchasers without notice, as the deed to them, on its face, discloses the existence, in my opinion, of such a claim.
I conclude that the plaintiffs are entitled to recover the property claimed in their petition; and that the judgment of the Court below ought to be reversed and the cause remanded, to settle the question of rents and profits.
Concurrence Opinion
I concur in the above opinion of Justice Ogden.
Re-hearing refused.
