Cloutier v. LeméeCloutier v. Lemée
- Reporters:
- Before:
- Fenner
The opinion of the Court was delivered by
Fenner, J.Plaintiffs, as heirs at law of J. B. Cloutier, Sr., deceased, joined by Ambrose Deblieux, principal obligor on the twelve-months’ bonds hereafter named, are actors in this suit to restrain the seizure and sale of a plantation under a writ of fi. fa. issued on two twelvemonths’ bonds executed by Ambrose and Marzalie Deblieux in favor of *307A. H. Pierson, syndic of the creditors of the succession of J. B. ■Cloutier, Sr.
The heirs allege that they are оwners of the property seized in virtue of their heirship; that the same was sold under order of court •provoked by A. H. Pierson as syndic of thе creditors of the succession ■of Cloutier, Sr., at the instance of pretended creditors of said succession; that, at the time when Pierson was elected syndic, and at the date •of the order, and of the sale, there were no creditors of said succession; that the sale thereof was consequently unnecessary and illegal; that they had not authorized the existing provisional syndic to issue execution on the twelve-months’ bonds, and deny his authority so to do. ‘They cite the provisional syndic, the sheriff, and the persons claiming to bе creditors, averring that their claims had all been extinguished by prescription prior to the qualification of Pierson, as syndic, and priоr to the sale under which the twelve-months’ bonds were executed. They pray for an injunction, and for judgment perpetuating the same, dе-claring the claims of the defendant creditors to be prescribed, annulling the sale of the property and the twelve-months’ bonds; and ordering the property to be returned to the succession, and recognized as the property of the heirs.
Ambrose Deblieux аlso pleaded the prescription of five years against the twelve-months’ bonds.
Upon proper issues joined, there was judgment in fаvor of the provisional syndic and of one of the creditors, Marco Givanovitch, and against the plaintiffs, rejecting their demand аnd dissolving the injunction, and reserving the rights of the other creditors and of the heirs to urge and contest their claims on the tableau when filed.
Prom this judgment, plaintiffs have appealed.
The questions presented are three, viz:
1st. The power and authority of the provisional syndic to issue execution on the bonds.
His duties in administration are the same as those prеscribed for . syndic of insolvent estates.
O. O. 1225.
These duties include that of demanding and receiving all claims •which may become due during his administration. B. S. Sec. 1793. As matter of course, he must take necessary steps to preserve the property oonfided to his care, under рenalty of responsibility on his bond. Had he abstained from taking legal proceedings on these bonds, and suffered -them to become рrescribed, he and his sureties would be bound.
Inquiries touching the legality of his appointment are irrelevant. *308While actually exercising the office he must perform its duties, and the illegality of his appointment will not vitiate such acts.
Estate of Altemus, 32 An. 364.
Succession of Dugas, 30 An. 268; 21 An. 643; 10 An. 670; 5 An 156, 161.
The claim by the heirs of thе right to control and direct his action,, as being the only parties interested, necessarily depends upon the solution of the sucсeeding questions.
2nd. Has the succession creditors, or were their claims extinguished by prescription prior to the sale of the prоperty ?
In the present proceeding this controversy is confined to the claim of Givanovitch, in whose favor the judgment appеaled from was rendered.
His claim is on a solidary note of the decedents, J. B. Oloutier, Sr., and E. E. Oloutier, due March 1st, 1861.
Oloutier died, his succession was opened, and J. B. Oloutier, Jr.,, was duly appointed and qualified as administrator.
On July 8th, 1865, E. E. Oloutier, the surviving obligor, endorsed on the note and signed a formal acknowledgment of the debt and promise to pay it.
On same day, J. B. Cloutier, the administrator, acknowledged the note in writing, to be paid in course of administration.
The effect of these acknowledgments was twofold, viz: (1st), to interrupt prescription as to both the solidary debtors; (2d), to suspend prescription, quoad the succession of Oloutier, during the entire pendency of the administration.
The last doсtrine is firmly established by the decision in Renshaw vs. Stafford, 30 An. 853, followed and affirmed in Maraist vs. Guilbeau, 31 An. 713, and Heirs vs. Hornsby, 32 An. 337.
The correctness of these deсisions is vehemently assailed‘by counsel of plaintiffs, and earnest appeal is made to us to overrule them. In deference tо their demands, we have carefully examined the principles and reasoning on which they rest, and have considered the contrаry arguments of counsel. Our conclusion is, that the decisions are thoroughly sound and correct; and if the question were res nova, we should decide it in the same sense.
Even if we felt doubt аs to its technical correctness, which we do not, it could not be said to be “ so unfounded in law, or so unreasonable in its deductions, or so mischievous in its consequences,” as to justify us in departing from the wholesome principle of stare decisis and unsettling rights which may have been adjustеd under its control as a precedent.
Cooley, Const. Lim., p. 52.
*309The administration of the succession of Cloutier continues to the present day, and no account has ever been filed, so far as the record shows.
We do not think the suspension of prescription is affected by changes in the persons administering, nor by lapses of active administration resulting from the death of officers and the necessary delays in filling vаcancies. The administration is vested in the court through its officers, and is continuous, and does not lapse by death or change of officers.
It is, therefore, clear that Givanovitch was and is a creditor, whose •debt is not prescribed; and this is sufficient to maintain the salе, and to support the proceeding on the bonds.
3d. Are the bonds prescribed?
They are subject only to the prescription of five years.
Chastant vs. Strong, 22 An. 410.
Bank vs. Williams, 21 An. 121.
They became due, respectively, on January 6th, 1873, and January -6th, 1874. A writ of fi. fa. was issued upоn them, as authorized by law, •on September 24,1877, and notice of seizure thereunder was served personally on Ambrose and Marzalie Deblieux, on the 25th of the same month. The sheriff seized the property, advertized the same for sale, and was proceeding in due cоurse to execute the writ when arrested by injunction in the present suit. This seizure, in accordance with law, under the mandate of the court, and the notice thereof, were made within the prescriptive term, and operated an interruption thereof.
The casе cannot be distinguished from like proceedings under executory process, as to which it is now settled that the seizure and notice Interrupt prescription.
Hebert vs. Chastant, 22 An. 152.
Walker vs. Lee, 20 An. 192.
4 An. 322; 21 An. 155, 32; 23 An. 215, 427.
Such seizure and notice under fi. fa. is the mode of judicial enforcement of twelve-months’ bonds provided by law, which does not contemplate the necessity of ordinary suit thereon. The bonds are not pre■.scribed.
It is, therefore, ordered, adjudged and decreed that the judgment •appealed from be affirmed at appellants’ costs in both courts.
Mr. Justice Levy is recused, having been of counsel.