Blount v. Syms

12 La. 173 | La. | 1838

Bullard, J.,

delivered the opinion of the court.

This case went off in the court below, upon an exception in the nature of a demurrer. The exception denies the right of the plaintiff to maintain the 'present action on the grounds stated in the petition, and avers that the petition itself discloses a total want of right against the respondent.

Such an exception admits, hypothetically, the facts alleged, but denies the legal conclusion which the plaintiff seeks to draw from them, to wit,'his right to recover.

The facts alleged in the petition, and which for the purpose of this argument are to be. assumed, as true, without regard to other matters of defence upon the merits, are, that the plaintiff is the only surviving child of his father, Hugh R. Blount; that his mother, who is still alive, was in community with him ; that they had other children, who died since the father; so that the plaintiff and his mother are now sole heirs, and entitled to the property composing the community: that among the common property were two slaves, which the mother, who was the plaintiff’s tutriz, exchanged for the tract of land in controversy, which she afterwards declared to belong to the estate ; that the mother has received the whole of her share of the community in. other property, which she converted to her own use. It is lastly alleged, that the defendant illegally and forcibly took possession of the tract of land in question.

Where tlie mother, as natural tutrix, exchanges certain slaves of the community, for a tract of land, the son,' as heir of his father, may sue to recover this land from a third possessor, to •whom his mother illegally conveyed it. The institution of suit amounts to a ratification of the exchange and purchase of the land for his henefit. If the mother, ■while tutrix of her son, purchases lands with the funds or property of his deceased father’s succession, and he assents to the contract, his title to it will prevail over a naked possessor.

The bringing of the present suit on the part of the heir, amounts to a ratification of the exchange mac e by the mother, and if it be true as alleged, that the defendant is without title, the plaintiff would, in our opinion, be entitled to ..... ¶ , , acquired it in part or in whole for him, and he ^ssents to the recover at least a part of the land, if not the true, the land does not appear, nor is it alleged, belonged to the deceased, but if the plaint whole. It is ever to have iff’s mother ght as would contract, it appears to us, he shows such a ris prevail over a naked possessor.

We are, therefore, of opinion, the court erroneously sustained the exception, and the case must be rem trial upon the merits. landed for a

It is, therefore, ordered, adjudged and decre ed, that the judgment of the District Court be reversed, tl e case reinstated and remanded for further proceedings acccrding to law, and that the defendant pay the costs of the appeal.