39 So. 113 | La. | 1905
Lead Opinion
Statement of the Case.
On the 11th of March, 1871, Gaspard Schreiber, the father of Peter Gardere Schreiber, Pauline Schreiber, Mary Schreiber, Mary Elizabeth Schreiber, John Schreiber, Louisiana Schreiber, and Louis Edward Schreiber, issue of his marriage with Marie Jeris Bonami, purchased for his said children, then minors, from Mrs. Mary Helen Grillen, by act before Eusebe Bouny, notary public for the parish of Orleans, two lots of ground in the city of New Orleans, together with the buildings and improvements thereon, situated in the faubourg St. Joseph, formerly in the city and parish of Jefferson, then in the Sixth District of New Orleans, in the square bounded by Camp, Peniston, Chestnut, and Gen. Taylor streets. The act of purchase showed that the property was acquired with funds donated to his said children.
On March 22d the court ordered that Mrs. Mary Schreiber, natural tutrix of said minors, be appointed tutrix to represent said minors in that proceeding; that Ernest Commagere, notary public, be authorized to perform necessary acts in the premises; and that Henry E. Arbo and A. Grebert be appointed appraisers.
On March 24th a citation issued, addressed to Mrs. M. J. Schreiber, natural tutrix of the four minors (naming them). Service of this citation, with accompanying petition, was made, as shown by sheriff’s return, on Mrs. M. J. Schreiber, natural tutrix, on the 25th of March.
On the 26th of April, Mrs. M. J. Schreiber appeared before the deputy clerk of court and took an oath to discharge her duties under the appointment made by the court; the act reciting that she was natural tutrix, and appointed tutrix by the court to represent the four minors in the case. This oath was signed by her with her mark, but is verified by the deputy clerk as having been sworn to and subscribed before him.
On April 22d a notice was made out in the suit, directed to Mrs. M. J. Schreiber, natural tutrix of the minors Mary Schreiber, John Schreiber, Louisiana Schreiber, and Louis E. Schreiber, notifying her that judgment had been rendered in the case against the defendants. On May 5th Mrs. Mary J. Schreiber, as tutrix, signed an acceptance of service of this notice.
On the 22d of April the district court rendered a judgment, which was signed on the 3d of May, decreeing that a partition be made of the property (describing it) by lieitation and sale, and that it be sold to the highest bidder; that the parties be referred to Ernest Commagere, notary public, to complete the partition. On the 26th of June the property was sold to Charles Weiss for $1,880 cash. It had been appraised for $1,-500.
On the 10th of July, 1880, Peter Gardere Schreiber, Pauline Schreiber, wife of Martin Milhos (and her husband to assist her), Mary Elizabeth Schreiber, wife "of Frank J. Dorsey (and her husband to assist her), and Mary J. Schreiber, declaring that she appeared and acted in her capacity as natural tutrix of the minors, Mary Schreiber, John Schreiber, Louisiana Schreiber, and Louis E.
On the 10th of July, 1880, the notary public executed a certificate in which he declared that by an act passed before him on the 10th of July, 1880, purporting to be an act of partition between Peter G. Schreiber, Pauline Schreiber (of age), Mary E. Schreiber (of age), Mary Schreiber, John Schreiber, Louisiana Schreiber, and Louis Edward Schreiber, the sum of $740,673/?, making of each minor $185,163/?, and that she was responsible to the said minors in that amount, wherefore the recorder of mortgages was requested to record the certificate as a legal mortgage against said tutrix in favor of her said four minor children. This certificate was recorded on July 12, 1880.
On August 25, 1880, George Welman sold, for the price of $500 cash, to the minors Mary Schreiber, John Schreiber, Louisiana Schreiber, and Louis Edward Schreiber, by act before Ernest Commagere, notary public, certain described property in the Sixth District of New Orleans; the minors being represented in the act of sale by their mother, the widow of Gaspard Schreiber, acting as their tutrix; the act of purchase declaring that the funds with which the property was purchased were from funds received by her in the partition made on the 16th of July before the notary. On the 18th of May, 1886, John Schreiber and Louisiana Schreiber, assisted' by her husband, George J. Roth, brought suit against Mary L. Schreiber, wife of Alfred J. Dolhonde, assisted by her husband and Louis Edward Schreiber, a minor, asking for a partition of the property which had been purchased by then mother in their names with part of the proceeds which had been received by her in the first partition suit which has been referred to. The parties to this second partition suit, John Schreiber, Louisiana Schreiber, Mary Schreiber, and Louis Edward Schreiber, were the four minors on whose behalf their mother had acted as tutrix in the first partition suit. Mary L. Schreiber, made one of the party defendants, in answer to this demand for a partition, averred her willingness to have this property partitioned, and for a private sale on the terms proposed on behalf of the minor Louis Edward Schreiber.
In the petition of the plaintiffs in this second partition suit, they averred that the minor Louis Edward Schreiber was without a tutor, and they suggested that their mother be appointed his special tutor, and cited in said capacity, and as his mother and natural tutrix; also that a special undertutor ad hoc be appointed to assist the said special tutor.
On the 28th of May, 1886. the court ordered, upon this application, that the mother. Marie Schreiber, be appointed and sworn as special tutor of the minor Louis Edward Schreiber.
On May 1st Mrs. Schreiber took an oath to perform her duties as natural tutrix and special tutor of Louis Edward Schreiber. On June 1st she filed a petition, representing herself to be the mother and natural tutrix and special tutor appointed by the court,
The family meeting convened, and recommended a private sale of the property. The undertutor ad hoc concurred in the recommendation, and later the proceedings were homologated on the petition of the mother, appearing as special tutor ad hoc, and on .Tune 21, 1886, the sale was ordered to be made, and the partition effected. Under these proceedings a sale of the property was made to Edward Dillard, and an act of sale executed in his favor, under full warranty. This act was signed by John Schreiber, Lizzie Roth, George F. Roth, Mary L. Dolhonde, Alfred J. Dolhonde, and Mary Schreiber, as natural tutrix. On September 18, 1891, on application of Charles Weiss, the district court for the parish of Orleans confirmed, through a monition, the sale made to him on the-day of ■ — :-.
On the 22d day of August, 1895, Charles Weiss sold the property which he had bought to E. R. Chevally for $3,250.
On the 30th of November, 1903, the widow and heirs of E. R. Chevalley brought suit against William F. Pettit, alleging that on the 17th of July, 1902, Strousback & Stern, auctioneers, sold for their account to him the property sold by Charles Weiss to E. R. Chevalley; that, notwithstanding amicable demand, Pettit refused to comply with the sale and pay the price. They prayed that he be cited and decreed to do so. Defendant answered, and, after pleading the general denial, justified his refusal on the ground that the title to the property was not only cloudy, but bad and involved.
He assigned specially as objections that Peter Gardere Schreiber, Pauline Schreiber, Mary Schreiber, Mary Elizabeth Schreiber, John Schreiber, Louisiana Schreiber, and Louis Edward Schreiber became, while they were minors, the owners of the property; that Peter Gardere Schreiber, after some of the said minors had become of age, and some of them had married, brought suit for the partition of the property against Pauline Schreiber, wife of Martin Milhas, Mary Elizabeth Schreiber, wife of E. T. Dorsey, and the four minors, Mary, John, Elizabeth, and Louis Edward Schreiber; that the proceedings and judgments in said partition suit were wholly illegal, null, and void, for the reason that said four minors were not cited in said suit, because they were without a tutor or tutrix, their father being dead, and their mother, Mrs. M. J. Schreiber, never having been appointed, and never having taken the oath, qualified, or received letters, as their tutrix, and the order of said court appointing her tutrix to represent them in said proceeding being illegal, null, and void, she being incompetent to so represent them on account of her sex, and being incompetent to so represent them even if said order were legal, because, if she ever took ■oath under said order, she did not do so until after citation was served on her, and after default was taken, and after said judgment was rendered, and the only oath in said record purporting to be hers purports to be signed with her mark, although she could write and sign her name, and did write and sign her name in accepting service of said judgment; that there was no family meeting, nor qualified tutor or tutrix, nor undertutor, for said four minors, and said court did not swear the appraisers or experts, who were sworn only by a notary public; that said Pauline Schreiber, wife of Martin Milhas, and said Mary Elizabeth
And further answering, said defendant said that said seven persons, and particularly said four minors, were never legally divested of said property, and the survivors of said seven persons, and the children and heirs of those who are dead, are setting up claims to said property, and should be made parties and cited herein.
That said Peter Gardere Schreiber, said Mary Elizabeth Schreiber, widow of F. J. Dorsey, said John Schreiber, and said Louisiana Schreiber, wife of Alfred J. Dolhonde, and her said husband, are living in this city, and that said Pauline Schreiber, wife of Martin Milhas, died intestate in 1895, leaving as her sole heirs her seven children, all of whom are living in this city, to wit:
Martin Milhas, now 23 years old.
Florence Milhas, now 22 years old, wife of August Lanata.
Harry Milhas, now 21 years old.
Bertha Milhas,now 17 years old,
Annie Milhas, now 16 years old,
Grace Milhas, now 12 years old,
Lilian Milhas, now 8 years old,
lminors without | tutor.
That said Mary Schreiber, wife of George Roth, and her said husband, are both dead; that she died intestate in 1889, at the age of 26 years, leaving as her sole heirs her two children, both of whom are living in this city, to wit:
Alice Roth, now 16 years old, and 1 George Roth, now 14 years old, J
minors, without tutor.
That said Louis Edward Schreiber died unmarried and intestate in 1895, at the age of 25 years, leaving as his sole heirs his aforesaid living brothers and sisters' and the aforesaid minors, children of his deceased sisters.
Defendant prayed that. J. C. Hollingsworth, attorney at law, be appointed as tutor ad hoc to the minors Bertha, Annie, Grace, and Lilian Milhas and to the minors Alice and George Roth, and through said ' tutor the said minors be cited and made parties; that Peter Gardere Schreiber, Mary Elizabeth Schreiber, widow of F. J. Dorsey, John Schreiber, Louisiana Schreiber, wife of Alfred J. Dolhonde, Martin Milhas, Harry Milhas, Therese Milhas, wife of August Lanata, and said Lanata also be cited and made parties; that plaintiffs’ demand be rejected and dismissed, and that plaintiff be condemned to refund to him the sum of $200, which amount he had at the time of the promise of sale deposited with the auctioneer, and costs of suit. J. C. Hollingsworth was appointed tutor ad hoc of the minors, as prayed for, and the parties named were ordered to be cited and made parties. Hollingsworth qualified as tutor, and the other persons were cited. All of these parties appeared, and for answer said that they adopted the answer filed by the defendant Pettit, and prayed that plaintiffs’ demand be rejected.
Objection having been made by the plaintiffs to the appearance of the said parties, the court, by the authority of Johnson v. City of New Orleans, 105 La. 149, 29 South. 355, sustained the same; reserving to them the right to bring a direct action if such
The plaintiffs appealed.
Opinion.
We are relieved from discussing the various objections urged to the proceedings had and judgment rendered in suit brought by Peter G. Schreiber for the partition of the property herein involved between himself and his co-proprietors. Assuming that those objections were well founded, and that the sale of the property and the partition of the proceeds were not at the time binding upon some of the defendants in the ease, matters have taken such a shape since then that those objections can no longer be successfully advanced. The parties who were interested were at liberty after that sale and that partition took place to ratify and confirm them, and to warrant the title of the purchaser, had they thought proper, and they have done so.
An examination of the statement of facts will show that all of the parties to the first partition proceedings, other than the four minors who were minors at the time, joined in proper person in executing a warranty deed to Weiss, the purchaser, and received their proportion of the purchase price, while the four minors, through their mother, did likewise. We do not think it is claimed that the parties so acting (other than the four, minors) could thereafter attack the sale and partition proceedings. They were estopped by their warranty from so doing. The maxim, “Quern de evictione tenet actio, eundem agentem repellit exceptio,” applies to their case.
It will further appear that, of the four minors who were represented by their mother in the first partition proceedings, three thereafter joined in their own proper behalf in the partition proceedings which resulted in the sale of a piece of property which their mother had purchased in their name and for their benefit with a portion of the proceeds which she had received for them from Weiss, the purchaser at the first partition sale, and joined in a warranty deed of the property to Edward Dillon, who purchased that propervy under the second partition proceedings, and that the mother of Louis Edward Schreiber, acting on his behalf as his special tutrix, did likewise.
It thus appears that all of the parties to the first partition, with the exception of the minor Louis Edward Schreiber, by their own personal acts, committed themselves to the legality of the first partition proceedings, and directly warranted the sale made to Weiss thereunder. These parties were all; therefore, estopped by their warranty from attacking that title.
If it be true that Louis Edward Schreiber was not committed to the legality of the proceedings in the first partition by reason of his having been made a party defendant in the second, through his mother, for the reason that he was a minor at that time, the fact remains that up to his death, at which time he was 25 or 26 years of age, he manifested no intention of disputing or questioning these proceedings and that sale. Defendant insists that at his death his right to attack them was unimpaired, and that right passed to his heirs, and it yet remains in full force; that among these heirs were his minor nieces, who inherited directly in their own right, and who, being, besides heirs, under benefit of inventory, inherited their share in that succession, freed 'from any. estoppel resulting from the warranty which bound their parents. Counsel refer the court to Destrehan v. Destrehan’s Ex’rs, 4 Mart. (N. S.) 557 to 601; Succession of the Misses
The nephew and nieces of Louis Edward Sehrejber did not inherit in their own right in his succession, but as heirs by representation of their deceased mothers. The cases referred to involved a question of liability to collation, and not one of estoppel by reason of the warranty of the person through whom they inherited by right of representation. When.the nephews and nieces of Louis Edward Schreiber inherited in his succession, they at once became bound by the warranty which estopped their mothers. The right of Louis Edward Schreiber to dispute and question the legality of the proceedings in the first partition proceedings, and the sale thereunder made to Weiss, if then existing, lapsed to the extent of the inheritance which fell to these particular heirs then inheriting in the succession, and which went to the aid and satisfaction and fulfillment of the warranty of their mothers to Weiss, and quieted his title, had any doubt in respect to the same existed before. The warranty of the mothers was indivisible.
Heirs under benefit of inventory, as well as heirs pure and simple, are bound by the warranty of those through whom they inherit by representation. In the tenth volume of Laurent, treating of Successions (section 496), the author uses the following language:
“Le demandeur pent étre repoussé par une fin de non reeevoir celle de l’exception de garantie. Si celui qui demande la nullité, comme heritier de celui qui y a droit, est tenu lui-m§me de la garantie, il ne peut pas intenter Faction, car, obligé de maintenir Facte, il ne peut pas en poursuivre Fannulation. C’est ce que la cour de cassation a decide dans une espece oü. Fon faisait une objection trés subtile. L’un des copartageants succede a. un coheritier a l’égard duquel le partage est nul; e’était un interdit et il n’avait pas été representé au partage par son tuteur. Il fut jugé que le demandeur était non recevable parce qu’il devait la garantie, or celui qui doit garantir ne peut pas évíneer. Le principe est incontestable, mais la conséquence qui en resulte était inadmissible, disait-on. En effet, l’obligation de garantie que contraetait le copartageant l’empechait d’exercer le droit qui s’ouvrait a son profit dans une succession future; n’était-ce pas la un pacte successoire, et un pared pacte n’est-il pas radicalement nul? La cour de cassation répond, et la réponse est péremptoire, qu’il n’y avait dans Fespece aucune convention sur une succession future, mais un partage sur une succession ouverte; que si la garantie & laquelle Ies copartageants sont tenus les empeehait d’exercer un droit dans une succession future, c’était la une conséquence des principes généraux de droit et non d’un pacte successoire.” Peculier and Haime contre Veu Picard et Cons Cassation Dalloz, 1860, vol. 1.
We are of the opinion that the judgment appealed from is erroneous, and it is hereby annulled, avoided, and reversed; and it is now ordered, adjudged, and decreed that plaintiffs do have judgment against the defendant, William F. Pettit, decreeing and ordering him to accept the title and ownership of the property herein offered and tendered to him by the plaintiffs, and that he comply with the obligation assumed by him in respect to the same on the 16th July, 1903, by paying to the plaintiffs • the balance of the price which he agreed to pay for the same;' and defendant is condemned to pay costs in both courts.
Rehearing
On Rehearing.
In defendant’s application for a rehearing, it is urged: '
First. That the court erred in holding that George and Alice Roth, nephew and niece of Louis Edward Schreiber, and children of his predeceased sister, Mrs. Roth, did not inherit in their own right in his succession, but by representation of their deceased mother, and that said children are estopped from prosecuting a right of action derived from the succession of their deceased uncle, whose succession consists of his right of action for his one-seventh interest in the property described-in plaintiffs’ petition.
Second. That it erred in holding that Mrs. Roth or her children acquired “an additional interest” in said property by the death of Louis Edward Schreiber, and that said children are barred by the estoppel of warranty of their mother from prosecuting a right of
Third. That Mrs. Roth acquired no such additional interest, for she did not survive or inherit from Louis Edward Schreiher.
Fourth. That said children acquired no such additional interest, and are not harred by the estoppel of warranty of their mother, because they inherited nothing from their mother, who, as found by the court, had parted with her interest in said property before her death, and because the only interest ever acquired by said children was inherited by them directly and in their own right from their uncle Louis Edward Schreiher, without being bound by any act or obligation of their mother.
We did not err in holding that the children of Mrs. Roth did not “inherit in their own right,” but inherited by representation of their deceased mother. Article 897 of the Civil Code is express on that subject. The matter was discussed and explained by us in the Succession of Meyer, reported in 44 La. Ann. 871, 11 South. 5S2.
Whether these children, by inheriting by representation in the succession of the uncle, became bound by the prior ratification of' their mother of the proceedings taken in the two partitions, and the sales made therein, presents a different question.
On reconsideration, we think the court was in error in reaching that conclusion. In dealing with the subject of representation, the Code declares (article 894) that “representation is a fiction of the law the effect of which is to put the representative in the place, degree and rights of the person represented.” This provision of the law refers to the status and situation of the party represented with reference to the particular succession in which children are claiming to .inherit.
Applying the fiction of the law by assuming the continued existence of the mother of these children beyond tbe death of her brother, and: supposing her to have been a claimant herself in that succession, no question of the warranty of the sale made in the partition suit would have entered as a factor. That question would arise only later, after her rights as an heir in the succession had been recognized, and as between herself and the party whose title she might be seeking to annul. We acted inadvisedly in enlarging the fiction so as to continue the mother’s existence until after she had taken the property in her brother’s succession, and to make it then pass from her to her children struck by warranty obligations thrown upon it during this fictitious ownership of hers as an heir in her brother’s succession.
The error of our conclusion'on the subject of the estoppel of the Roth children from contesting the proceedings and sale in the first partition suit can be, and is, recognized without the necessity of a rehearing. But our doing so requires at our hands consideration of the grounds of objection raised by the defendant which we failed to pass upon.
An examination of the pleadings and statement of facts will show that there were two partition proceedings in which Mrs. Schreiber acted for and on behalf of Louis Edward Schreiher as his tutrix. The first proceedings and the sale thereunder are questioned herein. The second proceedings and sale are not. We direct our attention to the grounds of the objection urged against the first partition proceedings, and the sale made thereunder. These objections all go to the want of authority of the mother to have represented Louis Edward Schreiher, and to a claim that they were not properly made parties to that proceeding.
We see no force in the objection that the mother, by reason of her sex, was incapacitated from being appointed to represent the minor Louis Edward Schreiber as tutrix or curatrix ad hoc. If she had the legal capacity to have been appointed permanently as tutrix of that minor, she had the capacity to be appointed such for a special purpose.
We find in the transcript an oath taken by the mother after the judgment of partition, but in the interval between the- sale and the partition proceedings, in which the price of the sale was divided and distributed. In these proceedings she took part as tutrix. Why an oath was taken at that time, we do not know. Though she could write her name, that particular oath was signed with her ordinary mark. We are by no means satisfied that this was the only oath taken by her. We think it quite probable that it was supposed to be necessary that she should take an additional oath for the purpose of the partition proper, or under some proceeding not before us. In the partition proceedings she was cited as tutrix, and the judgment in the partition proceeding was rendered by the court contradictorily with her as the duly qualified tutrix ad hoc. At the sale under the judgment, Charles Weiss purchased on the faith of the proceedings, and paid the price. That sale took place on June 20, 1880, and no question was raised as to the legality of the proceedings and the sale made thereunder until raised by the purchaser at this sale., The minor Louis Edward Schreiber lived at least four years after his majority without manifesting the slightest intention of repudiating the action of his mother in acting in her behalf in the two partition proceedings referred to.
The syllabus in the case of Bruhn v. Firemen’s Building Association, 42 La. Ann. 481, 7 South. 556, reads that:
“While it is necessary that the proceedings should be carried on contradictorily with the tutrix of the minors, when it appears that she participated therein and approved the same, failure to cite her will be cured.”
In the case before us a representative of the minor was cited. In Shaffet v. Jackson, 14 La. Ann, 154, this court, referring to a judicial sale made in a partition proceeding, and to the objections urged to its Validity, said:
“As to the first ground of nullity, it does not appear that the father of the minors was ever confirmed by a judgment as their natural tutor, ..or that an undertutor had ever been appointed, but it does not follow from these facts that the minor could not be sued, and that a judgment rendered against him would be necessarily void. Article 116 of the Code of Practice provides that, if the minor against whom one intends to prosecute a suit has no tutor nor curator ad litem, the plaintiff must demand that a curator ad hoc be named to defend the suit. In the suit for partition the plaintiff applied for and obtained the appointment of a curator ad hoc to defend the action, and, as a purchaser in good faith, the minors must be held at this distant period to have been properly represented in the suit, or at least to have ratified the proceeding by their long silence and acquiescence. Sales directed by the court of probates are judicial sales, and the purchaser is protected by the decree ordering them, and, if the court had jurisdiction, the purchaser need not look beyond the decree. Lallande’s Heirs v. Moreau, 13 La. 431.”
See on that subject Linman v. Riggins, 40 La. Ann. 765, 5 South. 49, 8 Am. St. Rep. 549; also Young v. Courtney, 13 La. Ann. 194; Crawford v. Binion, 46 La. Ann. 1266, 15 South. 693; McCoy’s Heirs v. Derbonne, 109 La. 315, 33 South. 326; Civ. Code, art. 1289.
Under the special facts of this particular case, we are of the opinion that our original opinion should remain undisturbed, and it is hereby so decreed.