Collins v. Collins's Administrator

10 La. 264 | La. | 1836

Bullard, /.,

delivered the opinion of the court.

The conclusion to which we have come upon one of the peremptory exceptions pleaded by the defendants in this case renders it superfluous to investigate the complicated facts disclosed in the record.

The plaintiff seeks to render the estate of Murtough Collins, administered by the defendant, liable to him for mal-administration as his curator ad bona, while a minor, and of the estate of his deceased brothers, of whom the plaintiff is the heir, alleging that Murtough CoIIíds died without rendering any account of his administration.

The exception to which we allude is, that the plaintiff, on the 14th of July, 1825, being then an emancipated minor, had a final settlement with the deceased, M. Collins, and gave him a receipt in full on account of those several administrations, and a release of all mortgages and pretensions resulting from the same, and that he was assisted in the act by his curators ad hoc.

The act of release is in the record, and appears to have been passed before the parish judge and two witnesses, and the plaintiff was assisted by L. Lessassier, his curator ad hoc.

To this it is answered, that the act is null, because the plaintiff was a minor at the time, and because not preceded .by a rendition of a detailed account and exhibition of vouchers, according to article 355 of the Louisiana Code.

We had occasion to consider the question here presented in the case of Foutelet et al. vs. Murrell, 9 Louisiana Reports, 291, 299, and we then held that the nullity resulting from the want of a rendition of account previous to the release or extra-judicial settlement between the tutor and his former ward is relative, and that the act must have its effect until annulled by direct action, at least so far as third persons are concerned. The plaintiff, in his petition, makes no allusion to this act, but treats it as an absolute nullity, and contents himself with endeavoring to show its nullity, when it is set up as a defence to this action. Even in a direct action for restitution, he could be relieved only by placing the party with whom he contracted in the same situation in which he was before the contract. But then his direct action would be limited to four years after arriving at the age of majority. The estate of Collins is insolvent, and administered as such. The creditors may have acquired rights under that release which cannot be affected indirectly, as is attempted in this case.

In a direct action of nullity, to annul and set aside a settlement between the tutor and his ward, and. for restitution, the latter can only be relieved by placing the party in the same situation in whichhe was before the contract. The ward is restricted in his direct ‘action of nullity against his tutor, to four years after his arrival at the age of majority.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be affirmed, with costs.