2 Rob. 407 | La. | 1842
The petitioners, who are the children of William Brand, one of them emancipated by marriage, and the other two minors represented by their under-tutor, allege that they are the sole heirs of their deceased mother, the wife of William Brand. That, on the decease of their mother, their father became their tutor, and was duly qualified as such. That he instituted proceedings in the Probate Court for the purpose of liquidating and determining the rights of the petitioners in the succession of their mother, which proceedings resulted in a judgment, whereby the rights of the petitioners were liquidated and settled at $15,894 08, which liquidation was made with the view of giving a special mortgage in favor of his minor children, in lieu of the general one resulting from his tutorship. That, finally, on the 21st of June, 1887, by notarial act, he declared that he gave the special mortgage on a particular piece of property, in order to secure the sum of $41,600-89, and his faithful administration and performance of his duties as tutor of his minor children.
They represent that this special mortgage was accepted by the Court of Probates, in lieu of the general mortgage which had existed in their favor, which general mortgage was ordered to be cancelled, and the special one to stand alone as security for the tutor’s faithful administration of the property of his children.
They further represent that afterwards, in 1841, they discover
The plaintiffs further aver that the premises thus mortgaged are now in the possession of James Erwin, by whom they were acquired, subject to said mortgage ; that due demand has been made of William Brand, the principal debtor, and of Erwin, the third possessor, who refuse to pay the sum due to E. J. Barnard, one of the petitioners ; and that said Erwin denies that the premises are liable in his possession to the mortgage, although duly recorded long before he acquired the property.
They, therefore, pray that Erwin may be cited, as well as Brand, and that it may be decreed that the mortgaged premises are bound for the payment of the sum of $28,290 70, with legal interest from June 16, 1837, the date of the judgment fixing the amount of the plaintiffs’ claims, until paid; and that the property may be sold for the payment of the same, one-third of the price to be paid in cash to E. J. Branard, and the other two-thirds to remain in the hands of the purchaser, secured by mortgage on the property, with interest, payable in equal portions to the other two peiitioners, Frederick Browder Brand and Ann A. Brand, as they shall attain the age of majority or be emancipated.
The third possessor answers, that he is in possession of the house and lot mentioned in the petition, by an unincumbered title, by virtue of a sale under the authority of a court of competent jurisdiction, except that it is subject to a mortgage amounting to $15,894 43, which was fixed and ascertained by a judgment of the
The Commercial Court was of opinion that a judgment of liquidation of the rights of minors, and a special mortgage given in accordance with the act of 1830, are so far binding on minors, in favor of third persons, that any purchaser of the property, so specially mortgaged, is only bound to pay the amount of the judgment of liquidation, with interest; and that, on paying that, he will hold the property free from all other claims of the minors, although they may show manifest error against them in the liquidation. The order of seizure was consequently restricted to the sum settled by the first judgment of the Court of Probates. The plaintiffs have appealed.
BullaRd, J. This case presents the question, whether a special mortgage given by a tutor to secure the rights of his pupil, in pursuance of the act of 1830, is restricted to the amount found due to the minors at the time the mortgage was given, or whether, although restricted as to the property subject to it, it does not secure all that may be found due to the minor resulting from the administration of the tutor, up to the time of the majority or emancipation of said minor ?
The act of the legislature of 1830, which authorizes the taking of such special mortgage, declares, that “ tutors, &c. may, and they are permitted to give a special mortgage on immoveable property, not slaves, for the security of the rights and property of their children, and the faithful discharge of their functions.” It requires the advice of a family meeting that the property offered to be specially mortgaged, is of sufficient value to secure the rights of said child or children, in capital and interest. It provides that, after the execution of said mortgage, all other property of the tutor shall be completely discharged from all legal, tacit, or other mortgage, arising from the tutorship. B. & C.’s Dig. 807.
Thus it appears that the object of the special mortgage is to secure the rights and property of the pupil, and the faithful administration of the tutor. It is a substitute for the general legal mortgage so far as the rights of the minor are concerned, and although termed a special mortgage, it is not necessarily special as to the amount of money it may be intended to secure. It is special as to the property subject to it, and special is the correlative of general. “ A. general mortgage,” says the Code, “ is that
It waso clearly the intention of the legislature to secure to the minor the faithful administration of the tutor up to the moment of his final discharge, and, therefore, the amount secured by the mortgage is not necessarily to be ascertained at the moment the mortgage was executed. If other sums should come into the hands of the tutor, the property mortgaged would stand as security. The amount found due by a settlement in the Court of Probates, during the minority of the pupil, is not conclusive upon him. It may be examined into afterwards on settling the tutorship and rendering a final account. Stafford et ux. v. Villain et al., 10 La. 319.
• It was as clearly the duty of a faithful tutor to correct such an error as was discovered in this case, as it would be to recover from a third person the same amount discovered to be due after the execution of the special mortgage. In both cases the sum found to be due is the property of the minor, and its administration and final payment to the pupil, at his age of majority, are secured, in our opinion, by the mortgage in question.
. Nor does this view of the case differ from that expressed in the case of Casanova's Heirs v. Avegno, 9 La. 192. In that case, and in several subsequent ones, we held that when the special mortgage has been accepted and recorded, the general mortgage resulting from the tutorship ceases to exist as to third persons; and that whatever error may have been committed in ascertaining the amount due to the minor, the mass of the property is validly released from the general mortgage so far as third persons are concerned. Lesassier v. Dashiell, 17 La. 194. The case of Le Blanc v. His Creditors, 16 La. 120, is to the same effect. All these cases establish the principle that the mass of the property is re
We, therefore, conclude that the house and lot is mortgaged to the full amount found due to the minors by the last settlement in the Court of Probates. We cannot, however, accede to the prayer of the tutor, that the property may be sold for cash, and that the share coming to the children, yet minors, may be paid over to him. That would defeat one of the purposes of the mortgage itself, which was to secure his future fidelity in his administration, and would leave the minors without any security whatever. The property must be sold to make what is coming to E. J. Barnard, subject to the mortgage in favor of the other minors.
The judgment of the Commercial Court is therefore reversed ; and, unless the defendant shall elect to pay the amount claimed by the plaintiff and to hold the property subject to the mortgage of the two minors, it is further ordered, the parties agreeing, that the same be sold for such amount in cash as may be required to pay the costs, and the balance of the price payable one-third in cash, and the remainder at the age of majority of the said minors respectively, or of their legal emancipation, in equal shares, bearing interest from the day of sale at five per cent per annum. That the cash installment be applied, so far as may be necessary, to pay the sum of $9,430 23 to the plaintiff, Elizabeth Jane Barnard, assisted by her husband; the remainder of the price to be retained by the purchaser subject to the rights of said minors not emancipated, and secured by mortgage on the said house and lot; and that the appellee pay the costs of this appeal.