| La. | Mar 15, 1854
Lead Opinion
This is a suit to annul a judgment of partition and a sale made under the same; also for a partition of the property thus sold, between the plaintiff and her brother and sisters, the defendants, as joint heirs of their father and mother.
The action of nullity has three grounds, as stated in the argument of plaintiff in this court:
1st. That in the suit in which the judgment was rendered, that is sought to be annulled, there was no order of court authorizing the present plaintiff, defendant in that suit, a married woman, to appear and defend the action.
2d. The proceedings in partition, and the probate sale, are illegal, because the judgment rendered by the court did not direct in what manner the partition was to be made, nor appoint a notary to make the same.
3d. The property was adjudicated at less than its appraised value in the inventory.
I. The petition in the suit of John A. Gilmore and others v. Susan Gilmore, wife of Charles Eubbs, states that the petitioners, four in number, and the defendant, their sister, were the children and sole heirs of John Gibnore, deceased, in 1834; that all the parties were of full age, and that the petitioners required a judicial partition of the estate of their ancestor, the defendant having refused to give her consent to an amicable partition. The petition (filed in October, 1852) concludes, “ that the said Susan Gilmore, and her husband, Charles Hubbs be cited to answer this petition, arid for general relief.” A citation was issued by the clerk in that form, which wns served upon Charles
This case differs from that of Adíe v. Anty and husband, 1st Ann. 260, relied upon by the plaintiff inasmuch as the judgment by default against the husband and wife, In the case of John A. Gilmore v. Susan Gilmore, wife of Hulls,, was never set aside by the filing of an answer; neither Mrs. Hulls nor her husband made any appearance. Whereas in the case of Adle v. Anty and husband, the judgment by default taken against husband and wife, was set aside, upon the wife alone appearing and filing an answer. “-Upon that issue,1' says the court, “ the plaintiff went to trial, without taking the necessary steps to have the wife authorized to contest the suit, and judgment was rendered in his favor.” So, in the case of Keys v. Nettles, 12 L. R. 381, the married woman filed a petition in her own name and without the assistance of her husband. In both instances, the cause was remanded to be proceeded in according to law. But here, the suit was brought in the mode required by Article 118 of the Code of Practice, which provides, “ when one intends to sue a married woman, for a cause of action relative to her own separate interest, the suit must be brought both against her and her husband.” Further, the service of process was made as required by Article 182 C. P., which says, “-if the defendants are husband and wife — it will be sufficient to deliver one single citation and one single copy of the petition, to the person representing the defendants.” The following was the language of the court In Chiasson v. Duplantier, 10 L. R. 674: “ In the case of Laws v. Chinn, 4 Martin N. S. 388, this court held, that the husband and wife, being co-plaintiffs, his authorization to her clearly resulted from his joining in the suit, in which he had no other interest than to assist her in asserting her right. In the present case, she was co-defendant with her husband, and it is difficult to perceive any difference in principle between the cases. In the first, she became a party by petition ; in the last, by citation and answer.” This decision appears to be a case in point; the only difference in the facts being, that instead of an answer filed by the husband and wife, as in Chiasson v. Duplantier, there was in the case at bar, a tacit joinder of issue by the judgment by default taken against husband and wife. C. P. 361. This tacit or feigned issue was binding upon the wife, and dispensed with an authorization of the Judge, which only becomes necessary in the absence of an authorization, express or implied, of the husband. C. P. 118. C. C. 126, 129.
II. Upon the second point, we have considered that irregularities in the form of the judgment of partition of the nature of those charged, are the subject of appeal, rather than of the action of nullity. The judgment of the 6th of December, 1862, seems, however, to be regular. It follows the prayer of the petition ; recites that experts have been appointed, who have reported that the property could not be conveniently divided in kind ; and orders a sale at public auction in conformity to article 1261 of Ihe Civil Code.
An equitable consideration against disturbing that judgment arises, also, from the conduct of the plaintiff’s husband, who represented her, in relation thereto. It is proved that he assisted her in fixing the terms of the sale, and also at the sale itself. This was not merely a passive, but an active execution of the judgment, and would seem to be within the the purview of Article 612 of the Code of Practice.
III. It is objected, that some portions of the property were sold at prices
Besides, the principal item of property thus sold, the Gilmore plantation, was afterwards re-sold at private sale by consent of all the parties, plaintiff joining in the same as vendor, for a largely increased price. 0. 0. 1268.
There is a bill of exceptions in the record, to the exclusion of testimony offered by plaintiff to prove that slaves had risen in value since the sale under the judgment of partition. Had this fact been proved, it would not have changed our conclusion in this case, and the exclusion of the evidence is .therefore unimportant.
Judgment affirmed.
As to whether, under the circumstances, the wife had capacity to stand in judgment.
The husband having failed to appear to assist his wife in the defence of her suit, I think it was necessary that the plaintiff should have obtained from the court an order authorizing her to stand in judgment.
Concurrence Opinion
I concur with Judge Buchanan on the first point discussed in his opinion.
My impressions are against his views on the second point. The proceedings might have been held irregular on appeal. But I do not think the irregularities such as to authorize an action of nullity and set aside the sale. Moreover, there was laches on part of plaintiff, and no equitable reason is shown to disturb the sale, and the concurrence of the husband increases the equity in favor of the purchasers. 9 L. R. 79. 10 L. R. 573. 1 R. R. 523. 3 Ann. 646. 13 L. R. 431. 5 Ann. 255. 3 Ann. 664.