43 La. Ann. 717 | La. | 1891
Lead Opinion
The opinion of the court was delivered by
Plaintiff seeks to charge the defendant as a negotio
It is alleged, substantially, that, in 1872, the defendant, being at the time public administrator for the parish of East Baton Rouge, provoked an administration of said ancestor’s estate — same being alleged to be a vacant estate worth less than $500 — and caused a simulated sale of said land claim, the only asset of the succession, to be made “ for the bare costs of administration.” And at the sale same was ostensibly adjudicated to D. W. C. Wheeler, who, on the faith of such adjudication, procured from the Surveyor General of Louisiana, in satisfaction thereof, the scrip authorized by act of Congress to be issued therefor; and upon which said surveyor general made an indorsement to the effect that said purchaser was the legal representative of said ancestor.
It is further alleged that said scrip was located upon certain pine lands in the State of Wisconsin, which were, in 1873, patented to “ Christopher Gale, or his legal representatives, and that said lands have since been denuded of timber and sold for taxes, and put beyond reach and recovery by the heirs of said ancestor, of which the petitoner represents one-eighth.”
The petition charges that the said succession proceedings were and are “null and void, for reasons apparent on their face, and because of the fact, aliunde, that the heirs of Christopher Gale had accepted his succession in the year 1828, and there was, therefore, no estate to administer in 1872.”
It also charges that “ the succession proceedings and sale, the procurement of the scrip, its location and patenting, were had, done and continued in pursuance of an agreement, or agreements, between D. W. C. Wheeler, * * the purchaser at the succession sale; A. G. Foster, who acted as his attorney; his brother, E. W. Foster, then surveyor general; D. J. Wedge, who acted as attorney for the defendant in the succession proceedings; and Chapman, Hosmer & Co.,, claim agents at Washington, D. C.”
It is not charged that the defendant was a party to the alleged conspiracy, but it is avowed that he, perhaps ignorantly, permitted his office to be used in furtherance of same.
Alleging that all the other parties named reside beyond the juris
The prayer of his petition is for judgment in keeping with the foregoing averments.
To this suit the defendant filed an exception of no cause of action; and, also, excepted on the ground that the proceedings in the succession of Gale, described in plaintiff’s petition, were had and taken in pursuance of an order of the late parish court, of the parish of East Baton Rouge, acting as a court of probate; and that the defendant, as public administrator, acted thereunder.
That said judicial order has never been revised, or set aside, on appeal, or in a direct action of nullity; and that same cannot be collaterally attacked in this suit.
He therefore prays the dismissal of the suit.
On the trial of said exceptions, same were sustained and the suit dismissed, and from that Judgment plaintiff prosecutes this appeal.
We are of opinion that the judge a quo correctly ruled in sustaining the defendant’s exceptions and dismissing the plaintiff’s suit.
As a cause of action we are disinclined to regard the averment as to defendant sufficient; for, notwithstanding it is specifically averred that the judicial sale and adjudication to Wheeler was simulated, it is admitted in the same sentence which contains that averment, that the sale had a consideration to the extent of “ the costs of- administration;” and, notwithstanding it is alleged that this sale was procured and consummated by the means and instrumentality of a conspiracy entered into by and between certain named persons, it is distinctly stated that the defendant is not charged to have been a particeps criminis, but it is averred that “ he, perhaps ignorantly, permitted his office to be used in furtherance of the same.” These two averments and judicial admissions are inconsistent with the following averment, that the defendant had rendered himself liable as an intermeddler “ by pretending to administer ” the succession of Gale, and destituting it of said property.
But if it be conceded that plaintiff’s petition discloses a cause of action, it is clear that the order of court, and the proceedings thereafter, can not, on such averments as those previously quoted, be collaterally attacked, or questioned in suits between other parties.
The court that granted the order had complete jurisdiction of the res. The defendant was public administrator de jure et defaeto. The property was duly inventoried and advertised; and it is admitted that at the sale a small consideration was paid. It will not suffice to say now that there were no debts due the deceased then.
In Webb vs. Keller, 39 An. 55, we said on this subject:
“The complaint is made of the order of the court directing the sale, on the ground that the estate * * * owed no debts, etc.
* * *, The debts were subsequently placed upon the tableau, and proved to the satisfaction of the judge who was competent, etc.
* * This was a mere irregularity, and not a cause to challenge the proceeding as null and void.
The same principle was affirmed in Linman vs. Riggins, 40 An. 764.
The defendant must be dealt with as public administrator and not negotiorum gestor.
Judgment affirmed.
Rehearing
On Application for Rehearing.
We have carefully examined the plaintiff’s elaborate application for rehearing, and the printed record, opinion, exhibits and brief accompanying same without being convinced that our opinion is erroneous.
The theory of plaintiff’s case is that defendant is liable, and can be proceeded against as a negotiorum gestor; and our opinion holds, that on the state of facts presented he is not <prima faeie liable in that capacity.
The gravamen of the application is that his petition alleges it to be a fact — not a fact apparent of record; not a fact known to the defendant — but a fact aliunde “ that the heirs of Christropher Gale had accepted his succession in the year 1828, and there was no estate
Nothing in'the opinion is intended to deprive the plaintiff of any remedy or redress she may have against other parties, and the same is fully reserved.
Rehearing refused.
