Dauterive v. Shaw, No. 11,780

No. 11,780 | La. | May 6, 1895

. The opinion of the court was delivered by

Miller, J.

The plaintiff sues to have his title recognized as owner of one-third of certain property held by the defendants under a sale based on the proceedings of a family meeting and judgment of homologation of the parish court of Iberia, directing the sale of the interest of the plaintiff, then a minor. From the judgment in defendants’ favor, plaintiff appeals.

In 1879 the father of the plaintiff petitioned the Parish Court for the holding of a family meeting of the relatives or friends of the minor to advise as to the private sale of his interest in the property sued for. The meeting was held in accordance with the order, the proceedings directing the sale homologated, and defendants became the purchasers.

The contention of the plaintiff is that the minor was not represented in the proceedings for the sale, and that the Parish Court had no jurisdiction.

It is true that during the marriage there can be no tutorship, incidental as it is to the death of one of the parents (Civil Code, Art. 250). But it is equally true that the father, during the marriage, is clothed, in regard to the property of his minor child, With all the power of the tutor. Property belonging to the minor, both of whose parents are living, may be sold or mortgaged, or any other step taken affecting their interest, in the same manner and with the same forms as in case of minors represented by tutors, the father occupying the place and being clothed with the powers of the tutor. Civil Code, Art. 222. This article, not in the old Code, needs no comment. It plainly applies to the case here of a sale of the minor’s property, on the advice of a family meeting provoked by the father, and the proceedings approved by the judge, the same as a tutor would have acted if there had been a tutorship; the Act No. 25 of 1878 authorizes the sale of a minor’s property at private sale, when, on the tutor’s application, a family meeting advises the sale, -appraises the property, fixes the terms, and the proceedings of the meeting are approved by the judge. Act 1878, p. 47, amending Act of 1869, p. 207, now Sec. 2667 Revised Statutes. It is urged that the father applied to be appointed tutor, and was so appointed. The father and mother applied for the making of an inventory, and asked for the appointment of an under-tutor ad hoc, the petition stating that the father occupied the place, was clothed with the powers of a tutor, and closed with the prayer that the proceedings be carried on contradictorily with the under-tutor and after the appointment of the father as tutor. The order of the court appointed the under-tutor, and the father as tutor. In the subsequent petition for the family meeting he styles himself the tutor. The proceedings were homologated on the petition of the under-tutor. Giving the father the name of tutor does not, in our view, affect his capacity to act as father. It was, in effect, the action of the parent designated by law to ask for the meeting and make the sale. It is urged, too, there was no under-tutor, because, it is claimed, there was no tutor; but the article of the Oode that empowers the father to exercise the functions of tutor provides that when, in such case, the sale or mortgage of the minor’s property is contemplated, the judge shall appoint an under-tutor, contradictorily with whom the proceedings shall be conducted. This appointment was made by the competent court, and on his application the proceedings of the meeting were homologated and the sale ordered. We think, therefore, the contention that the minor was not represented must fail.

In the petition for the family meeting, it is alleged the major heir desired a partition, threatened a suit and a private sale was necessary. It is urged that no reasons for a private sale are assigned on the petition nor in the proceedings of the meeting. The plaintiff insists this vitiated the proceedings. In the case cited, in this connection, the Supreme Oourt maintained an injunction to restrain the sale on a mortgage based on the proceedings of a family meeting. But there were a variety of considerations influencing that opinion. In this case the petition did assign the reason that a forced sale was threatened, and the economy of a private sate and the averting of a sacrifice of the property were also assigned. We do not think that the proceedings of a family meeting and the judgment of homologation on which a third party has bought and paid the price can be avoided on this ground. Our jurisprudence, we think, maintains titles of purchasers in good faith, based on judgments homologating the proceedings of family meetings, directing sales of minors’ property. See Lalanne’s Heirs vs. Moreau, 13 La. 431" court="La." date_filed="1839-05-15" href="https://app.midpage.ai/document/lalannes-heirs-v-moreau-7159895?utm_source=webapp" opinion_id="7159895">13 La. 431; Succession of Jacob Hawkins, 35 An. 593.

The plaintiff assails the competency of the Parish Oourt to partition the property owned by the plaintiff and his sister and brother coming to them, not by succession, but by donation. This vexed question, we think, was finally deemed settled that the Parish Oourt had that jurisdiction in all cases where a minor was interested. But in this case the proceedings of the meeting, their homologation and sale, passed the title. There can be no question of the authority of the Parish Oourt to order the meeting and render the judgment of homologation. That court is designated by the statute. Under the statute and adjudication there was no necessity for any suit, and hence no necessity for any discussion of the old question of the jurisdiction of partition suits. Bruhn vs. Building Association, 42 An. 482; Duruty vs. Musacchia, 42 An. 359.

It is urged, too, that the property was divisible in kind. It is, we think, the province of the meeting to consider that and all other questions touching the advantage vel non of the sale. Their action, when approved, must be accepted as conclusive.

The view we express disposes of the case and renders unnecessary other questions discussed in plaintiff’s brief.

It is therefore ordered, adjudged and decreed that the judgment, of the lower court be affirmed at plaintiff’s costs.