14 La. Ann. 764 | La. | 1859
Mrs. Fuselier, the plaintiff, sues defendant, who is one of two co-sureties of her late tutrix, for a balance of account of tutorship, due by the .latter, as settled by a judgment obtained by plaintiff against her said tutrix.
The bond, subscribed by defendant, on which this action is based, reads as follows :
“ State of Louisiana — Parish of St. Martin.
“ Know all men by these presents, that we, Julie Picard, widow of Simon David, and now the wife of Ursin Ozenne, and by him duly authorized, of the parish of St. Martin, and Antonio Bauvais and Joseph D. Babineau, of the same parish of St. Martin, are held and firmly bound unto Alphonse Robin, Judge of the parish of Pointe Coupee, and to liis successors in office, in the sum of thirty thousand dollars, for the payment whereof, well and truly to be made, we bind ourselves, our heirs, &c., firmly by these presents, dated at the parish of St. Martin, this third day of January, one thousand eight hundred and thirty-eight. The condition of the above obligation is such, that whereas the above bound Julie Pi-card has been appointed by the Judge aforesaid, tutrix of Basilie Fuselier and Ludger Fuselier, her grand-children: Now, therefore, if the said Julie Picard shall well and truly fulfill the duties incumbent on her as tutrix aforesaid, and shall account for and pay over to the said Bazilie Fuselier and Ludger Fuselier, or to their legal representatives, or to such person or persons as shall be entitled to the same, when thereto legally required, all such sum or sums of money as shall come into her hands as tutrix aforesaid, then the above obligation to be void, otherwise to remain in full force and effect.
(Signed) J. P. Ozenne,
Ub. Ozenne,
Antoine Bauvais, Joseph D. Babineau.”
An appeal was taken by defendant, which was decided by this court in May, 1856, remanding the cause for a new trial. 11 An. 393.
The case being thus reopened in the court below, a new party made her appearance in that court, to-wit, Julie Besirée Baumis, wife of Hiliare Oradnigo, and daughter and sole heir of Antoine Baumis, deceased, the co-surety of defendant in the bond of tutorship, who, on the 3d of March, 1857, filed a petition of intervention, alleging that, having been bound to plaintiff as heir of her father, and having been sued by plaintiff upon her said liability, she had, (by a notarial act, annexed and made part of the petition of intervention,) shortly after the rendition of the judgment of the District Court against defendant, settled in full with plaintiff for the claims of the latter, reckoning said claims at the amount fixed by said judgment, to-wit, $22 382 75 ; and had taken a subrogation from plaintiff, by the same act of the rights of the latter against defendant, under the bond of tutorship.
The petition of intervention goes on to aver, that by the judgment of the Supreme Court, subsequently rendered, an item -of $2,584 50, allowed by the judgment of the District Court, as a just claim of plaintiff against her tutrix and the sureties, had been rejected and disallowed; by means whereof, the intervenor was entitled to claim back from plaintiff the said amount, with accruing interest, as so much paid in error.
The petition of intervention concludes with a prayer for judgment against plaintiff for the sum paid in error ; and for judgment against defendant, for whatever amount the court may fix as due by said Babineau on his bond of surety-ship.
The act of compromise annexed to the petition of intervention shows, that, on the 24th of October, 1854, the plaintiff and the intervenor appeared before a Notary Public, and, after declaring that the intervenor was bound, insólido, with the .defendant, for the balance due by plaintiffs’ late tutrix ; and also, that such balance amounted, at the date of the act, under the judgment of the District Court, lately rendered against defendant in this suit, to a sum of $22,382 75 — • the act proceeds to recite that intervenor pays to plaintiff eighteen thousand dollars, in cash and notes of hand; of which sum, the parties agreed, that $11,191 31 i, was paid for the half of intervenor’s co-surety, Babineau, and 6,808 62£, for the half of the intervenor herself, in the joint and several obligation of the said sureties under their bond, and the judgment of the District Court.
As this contract is made the foundation of a pretention to render one of two co-sureties, liable to reimburse to the other about two-thirds of what has been paid by the latter to the common creditor, in discharge of the joint and several obligation of both, it is proper to repeat textually the form of words by which it is supposed that such an effect has been produced. The contract says :
“ Quoique la dame Julie Désirée Baumis et le sieur Joseph D. Babineau soient tous les deux responsables solidairement envers la dite dame Basilie Fuselier, de la somme de vingt-deux mille trois cent quatrevingt-deux piastres soixante-quinze cents, il est néanmoins convenu ici que chacun individuellement vis-a-vis l’un de l’autre, n’est débiteur que de la moitié de cette somme. La dame Baselie Fusilier,
It is very clear, that from and after the date of this contract, or an-angement, as the act styles it, the plaintiff was without interest in this suit. She was paid and satisfied in full. And she so declares in her answer filed to the petition of intervention; claiming that the notarial act of the 24th of October, 1854, was a compromise or transaction, having the force of the thing adjudged between herself and the intervenor, “ who was subrogated both by the operation of law and an express stipulation to that effect, to all the rights, claims and demands of this respondent, against the said Joseph D. Bahineau, the co-surety of Bauvais."
We concur in this view of the position of those two parties (the plaintiff and the intervenor) in relation to each other; and view the suit, from the moment of the appearance of the intervenor in court, as being prosecuted exclusively for her account and benefit.
The defendant answered the petition of intervention, by alleging fraud and collusion in the judgment rendered in favor of plaintiff against Mr. and Mrs. Ozenne, in the parish of Pointe Ooupée, and pleaded various other defences.
Upon these issues the parties went to trial, and the judgment of the District Court was, that plaintiff take nothing by her action against defendant; and that all the rights and claims of the intervenor, Julie Desiree Bauvais, be reserved for future adjudication. The plaintiff and the intervenor both appealed.
The plaintiff has no cause to complain of this judgment. She has, by her own avowal, nothing to claim from the defendant. The only issue in this record which concerns her, is the claim made by the intervenor against her for restitution of the sum by which the first judgment of the District Court was reduced by our decision on the previous appeal; and also for restitution of such other sums as should be deducted in favor of defendant, upon the final decision of the cause. This issue, indeed, is disposed of by the construction which we have put upon the notarial act of the 24th of October, 1854, (C. C. Art. 3045,) and whatever difference of opinion there may be as to the nature and effect of the said act, there can be none in relation to another act subsequently passed between the same parties (the plaintiff and the intervenor) : by which act, the intervenor consents to receive, in full satisfaction of all claims made by her against the plaintiff, the sum of twelve hundred and fifty dollars, which sum the plaintiff paid the in-tervenor in an endorsed note ; and the intervenor thereupon declares that she has no claim of any nature whatever, against the plaintiff. And the intervenor, Mrs. Gradnigo, by the same act, discontinues her demand in intervention as against the plaintiff, Mrs. Fuselier, and all demands of deductions from the balance of
The appellant, Mrs. Fuselier, being thus out of court, and the appellant, Mrs. Gradnigo, prosecuting her co-surety under her legal and conventional subrogation to the rights of plaintiff, as well as in virtue of the assignment and transfer of this action to her made, it remains to inquire what are the matters in controversy between the defendant and the intervenor.
This appellant argues that there are but three points left open by the former judgment of this court, to-wit:
1st. The amount received by Gabriel Fuselier, husband of plaintiff, by transfer of claims belonging to his wife.
2d. The confusion of the qualities of debtor and creditor in the intervenor.
2d. The plea of res judicata as to Mrs. Osenne’s interest in the succession of Ludger Fuselier, deceased.
We do not concur in this view of the present position of the cause. The decree is the only indication of what was decided by the court; and that decree simply remands the cause for a new trial, with leave to defendant to amend his pleadings.
There was no judgment for any particular items of the account of tutorship, or decree disallowing any particular item of said account. The whole of said account, or at least so much of it as the parties have commented upon, is before us for adjudication.
We have enounced, in our previous decision, the doctrine, that’the judgment against the tutor, upon the account' of tutorship, does not conclude the tutor’s sureties, although prima facie evidence against them. To this doctrine wo adhere ; and the party, who has, since the cause was remanded, stept into the shoes of plaintiff, is bound by it.
I. In examining the account, we commence by observing, that no matter what
Mrs. Gradnigo, when she discharged the debt for which she and defendant were jointly and severally responsible, acquired, of right, (0. 0. 2157,) a subro-gation to the rights of the common creditor. But those rights were fixed by the creditor at the amount which she thought fit to accept from Mrs. Gradnigo, in satisfaction of the whole debt; and the legal consequences of the payment, as between the solidary co-debtors, were beyond the power of the creditor to modify or control. A stronger case than this, in favor of the pretentions of the inter-venor, was presented in Roman v. Forstall, 11 An. 717, where it was held, that the co-debtor, the transferree of a third person who had paid the debt, and taken a conventional subrogation, was only entitled to recover his co-debtor’s proportion of the amount -which had been actually paid.
II. The surety is not liable, under this bond, for anything that came into .the tutrix’s hands, before the signing of the bond.
III. The defendant is not liable, for reasons giving in our previous decision, for the item of $2,584 50, collected by Mr. Janin and applied to the payment of a debt of Mrs. Ozertne to Gabriel Fuselier.
IV. The grandmother, of plaintiff was not her presumptive heir, at the time she was appointed her tutrix.
V. Neither was she an heir of her deceased grandson, Ludger Adolphe Fuse-lier; and the allotment to her of a portion of his estate as heir, was an error which did not constitute res judicata against plaintiff, and might be, as it was, rectified by a subsequent judgment.
VI. The counsel of appellee argues, that interest was improperly charged the tutrix upon the various sums of money received by her.
This argument is based upon a variation between the expressions used in Art. 71, p. 70 of the Code of 1808, and Art. 341 of the Code of 1825. The former provides, that the tutor is bound to pay to his ward, interest at the rate of five per cent, on all sums which he shall have received on his account, from the time he shall have received such sums respectively, without being admitted to free himself from such interest, under pretence of his not having been able to lay the money out.
The Article 341 of the new Code, directs the tutor to invest in the name of his minor, the revenues which exceed the expenses of his ward, whenever they
The obligation of the tutor to pay interest on moneys of the minor ■which come into his hands, can scarcely be considered an open question, at this day ; after the many decisions recognizing such an obligation, since the Code of 1825 is in force.
We will content ourselves, therefore, with observing that the word revenves in the first paragraph of the Article 341, is to be taken as synonimous with the word funds in the second paragraph of the same Article ; and as meaning all moneys belonging to the minor, that come into the hands of the tutor in the course of administration.
We state the account of the liabilities of defendant, under the bond of tutorship subscribed by him as surety of Julie Picard Ozenne, as follows :
Items of judgment against the tutrix allowed—
Item No. 2, Capital, $ 179 03. Interest, $ 129 77. Commissions, $ 12 97
3, 1,003 18 720 00 72 00
4 237 89 160 27 16 02
5, 6,986 75 4,794 20 479 42
6, 5,964 30 3,799 70 379 97
7, 5,964 30 3,496 00 349 60
9, 1,007 48 484 75 48 47
10, 627 30 288 92 28 89
11, 971 70 456 11 45 61
5522,941 93 4,329 72 •151,432 97
Amount of capital.1522,941 93
Amount of interest. 14,329 72
i -
Total.1537,271 65
Deduct commissions of tutrix.$1,432 97
Deduct for minor’s education and support. 2,598 00
- 4,030 97
Balance (reliquat de tutelle).$33,240 68
Interest on saidbalauce, at 5 por ceut. from 20th December, 1852, to
2d April, 1853, date of Sheriff’s sale. 461 75
Total.$33,702 43
Deduct proceeds of Sheriff’s sale. 18,984 09
Balance due 2d of April, 1853.$14,718 34
Interest on said balance from April 2d, 1853, to Oct. 24,1854. 1,125 34
Total.§15,843 68
Due on account of tutorship, capital and interest, on the 24th of October,
1854, the day that the intervenor settled in full with plaintiff, and took a subro-
Of which half was due by defendant to intervenor, in consequence of such payment, say. $7,92184
Of which was interest as above. 562 67
And capital. $7,359 17
The defendant is entitled to be credited on the above interest of $562 67 by the half of the proceeds of slave Kitty and some land sold under execution in January, 1855, and March, 1856, for $479 79, say.. $239 89
Balance of interest due by defendant. 322 78
Balance of capital bearing interest. 7,359 17
Total. $7,681 95
It is, therefore adjudged and decreed, that the judgment of the District Court, as regards the plaintiff and appellant, Bazile Fuselier, be affirmed ; that as regard the appellant, Julie Gradnigo, intervenor, it be reversed; and that said Julie Desiree Bauvais, wife of Hilaire Gradnigo, recover of Joseph D. Babineau, the defendant and appellee, the sum of seven thousand six hundred and eighty-one dollars and ninety-five cents, with interest at the rate of five per cent, per annum on seven thousand three hundred and fifty-nine dollars and seventeen cents of said sum, from the 24th of October, 1854, until paid, and costs of the District Court since (and including) the intervention filed herein, by the said Julie Grad-nigo. And it is further decreed, that the plaintiff, Basilie Fuselier, pay costs of the District Court previous to the filing of Mrs. Gradnigo's intervention; and that the costs of appeal be borne, one-half by plaintiff and one-half by defendant.
