6 La. 205 | La. | 1834
delivered the opinion of the court.
It is moved on the part of the appellee, to dismiss this appeal, on the grounds that there is no statement of facts, or any thing equivalent, and that an assignment of errors of law, apparent on the record, was not made and filed in due time.
An assignment of errors was not made in the manner directed by the Code of Practice, see art. 897; for none was filed within the time limited by that article. Consequently, if there be no statement of facts, nor certificate of the judge or clerk of the court below, as required by law, the appeal
The object of an appeal being to correct the errors of the inferior tribunals, both in relation to the law and facts of a case, an attempt by the appellate court, to reverse the judgment rendered in the first instance, by an examination of the entire cause, without a moral certainty that all the matters contested upon were before it, would be vain and absurd. It seems, therefore, to have been the intention of the legislature, in the various acts passed, relative to the manner of bringing appeals, to facilitate them as far as might be consistent with the certainty of all the matters in litigation, being fairly and fully exhibited to the Supreme Court. The laws passed on this subject have been somewhat multifarious, (and as is too apt to the case, without great precaution on the part of the legislature, when many laws are enacted, touching the same subject matter) they have the appearance in some degree, of confusion and contradiction.
At the organization of the Supreme Court, by the act of 1813, it is believed that only one mode was pointed out for bringing a cause fully before the appellate tribunal, which was by a statement of facts, made out by the parties, and in the event of their disagreement by the judge of the lower court. By a subsequent act, either party might require the testimony adduced to be taken in writing, to serve as a
In the case now under consideration, we have the certificate of the clerk, that the record contains a copy of all the documents on file, a transcript of all the proceedings had, and all the testimony adduced, &c., which in our opinion renders it necessary for us to examine the cause on its merits.
The suit is brought by the widow and heirs of Joseph Erwin, against the defendant, to recover from him the price1 of one half of an undivided tract of land, sold by their
The answer does not deny the capacity of the plaintiffs as heirs, hut an exception is pleaded to their right to prosecute the action in its present form. The succession having been accepted with the benefit of an inventory, the defendant contends, that it cannot be legally administered, unless by an 'administrator appointed for that purpose, in pursuance of certain provisions of the Louisiana Code, found in chapter 4, section 3, relating to the benefit of an inventory and the delays for deliberating. The articles which treat of the appointment of an administrator, are from 1034 to 1040 inclusive: . They seem to require the appointment of an a succession is accepted adjmhistftttoffin every case where * •- i wí%. benefit of inventory. That such an officer must be appointed' when-. tints heirs are of full age, under every cireümstance, without regard to the manner in which the inheritance js thrown on them, is most probably true. The duties and responsibilities imposed by law on an officer of this kind, are similar to those of curators of vacant estates; so also are his powers. But in cases requiring the appointment of tutors, we are of opinion that a just interpretation of the articles of the Code under consideration, will lead to a different result. A tutor duly appointed, or one on which the office devolves by the operation of law, represents the minors under his care in all civil acts, and has the administration of their estates. See La. Code, art. 327. Now any other article of the Code which provides another administration for an estate to which one is already given by law, necessarily involves inconsistency, and would lead to confusion and useless expense. An interpretation of laws producing such , conse(luences> would imply a most palpable absurdity m the ^aws themselves, or want of wisdom in the interpretation# The apparent incompatibility between the article 1037th of
the Code and that last cited, we think admits of reconciliation in a way to give effect to both. The article last cited t n i _ provides, that “ if all the beneficiary heirs be minors, then tutors or curators can claim the preference- for the administration,” &c. This provision of law certainly does not relate to a succession of which a tutor has already the administration, by virtue of his tutorship. It must therefore.have reference to estates which may descend to his hands during their minority, and ought not to be considered as having any influence on an estate, the administration of which is imposed i on him in the legal exercise of his functions as tutor, and 0 1 such administration he has and must exercise in pursuance of the provisions of the article 327. His right under author ity of general administration to collect and sue for, if necessary, to such collection, debts due to the succession cannotif ^ be fairly questioned.
A case like the present, when-part of be of full age, and part minors, presand seems not to be provided for by laV. and seems not to be provided for by laV. ' 1
An estate accepted under the benl;(JlA^ allnlrveiitoAy, should be administered as an entire thipg for ihfi of creditors and heirs, until partition batoHÍcre. ^No 'oyvepf the heirs who may have attained the ag^&fissto|6myj nor indeed the whole of them, in their capacity of heirs, have a right to the administration of a succession, without authority derived from competent power; and where they are united with co-heirs who are minors, and consequently under the protection of a tutor, it appears to us to be the most reasonable and beneficial course that could be adopted, to leave a succession thus situated to the administration of the tutor until partition. But as the heirs of age are not represented by the tutor in the event of suits to recover debts due to the succession, they should concur in the prosecution of such suits, as has been done m the present case.
The evidence fully establishes the claim of the plaintiff, and there is no evidence on the record to show that the defendant is m danger 01 eviction irom the land by him , , p -1. . 1 . , . . purchased, or ox disturbance m his possession.
The evidence of the case shows, that the ancestor of the plaintiffs sold the remaining undivided half of the tract of land to Lewis Rosamond Orillion, who thereby became a tenant in common with the defendant of the whole tract; and that the two purchasers holding in this manner, made a partition, by which a specific portion was assigned to the first purchaser, &c. The court below decreed the mortgage reserved on the undivided half sold to the defendant, to bear entirely and exclusively on the portion which had been specifically allotted to him by the partition between the joint tenants. The mortgage was reserved on an undivided half of the whole tract, and could in this manner alone have been enforced had no change taken place on the tenure of the defendant. The change in this respect, which results from partition above stated, cannot, in our opinion, alter the nature and effects of the contract of mortgage; it affects an undivided moiety; but as the defendant transferred by partition the half of his undivided portion to his co-tenant; as x , _ in i to this part of the tract the latter must be considered as a third person, and in order to enforce the mortgage on it, pursuit should be made as required by law in such cases. We think the court below erred in this part of its judgment. The judgment was rendered for two much; no credit having been given for one thousand dollars paid to Mrs. Erwin, one of the defendants; but as a remittitur was entered for this amount by them, the error might be considered as cured, and would not alone require the judgment to he reversed. The error, however, in relation to the decree of seizure under the mortgage must be corrected.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be reversed and annulled. And it is further ordered, adjudged and decreed, that the plaintiffs and appellees do recover from the defendants and appellants the sum of five thousand dollars, together with interest at the rate of six per cent, per annum on one thousand dollars, from the 1st day of April, 1828; like interest on one thousand dollars from the 1st of April, 1829; same
And it is lurther ordered, adjudged, and decreed, that one undivided half of the lots designated as Nos. thirty-two and thirty-three and constituted an undivided half of the entire tract sold by the ancestor of the defendants, to Joseph Orillion and L. R. Orillion, and which lots are now in the possession of the defendant, be seized and sold under the mortgage reserved. Reserving the right of the plaintiff to prosecute their mortgage on one half of lots Nos. 30 and 31, in the possession of L. R. Orillion, or in the hands of any third possessor according to law. It is further ordered, adjudged, and decreed, that the whole amount of this judgment shall be credited by one thousand dollars, tobe deducted from the aggregate of principal and interest due at the date of the receipt; say the 20th of September, 1831, and that the appellees pay the cost of this appeal.