43 La. Ann. 555 | La. | 1891
The opinion of the court was delivered by
The facts out of which this litigation grows are -the following:
The wife of William Golding died in February, 1864, leaving as
After her death, in the months of March' and July, the surviving husband, Wm. Golding, purchased the real estate involved in this-suit.
In October, 1864, the succession of Mrs. Golding was opened, but no inventory was taken till long afterward.
In June, 1865, Wm. Golding executed a mortgage on the real estate above referred to in favor of D. O. McCan, to secure an acknowledged indebtedness-of $50,056.90.
In July, 1865, Wm. Golding made an inventory in his wife’s succession, and included in it the property purchased by him after her death and on which he had just granted the mortgage to McCan.
On June 7, 1866, when the first mortgage note to McCan was about to mature, Golding brought suit against McCan, attacking the consideration of the mortgage, praying for its annulment, and for a further judgment against McCan for more than $100,000.
On June 16, 1866, McCan filed suit by executing process on his-mortgage note, which was enjoined by Golding on the same grounds set up in the first mentioned suit.
These suits went to issue and trial and both resulted in judgments in favor oí McCan, fr'om which judgments Golding took appeals to the Supreme Court.
During the pendency of these appeals a compromise was effected between Golding and McCan, evidently- by a notarial agreement, containing the following stipulations:
1. Golding dismisses appeals, suit Supreme Court Nos. 1511, 1916. (District Court Nos. 18,289, 17,465).
2. Golding agrees to transfer property corner Julia and Tchoupitoulas streets to McCan, in full payment of $25,000, and to substitute for the minor’s tacit mortgage on said property a special mortgage on other property.
8. Golding to pay McCan $5000 in cash and transfer certain judgment to extent of other $5000.
4. The final balance due McCan on mortgage on Novelty Iron. Works is fixed at $15,000, and sundry minor stipulations.
In the meantime, in August, 1865, Golding had filed the inventory taken in the succession of his wife, which exhibited the property here involved, and purchased by Golding after his wife’s death, as
Under the law then in force the minor had a tacit mortgage on the property of his tutor for the amount due him under the inventory, and this mortgage had been preserved under the Constitution -of 1868, by timely record of the abstract of inventory. McCan thus discovered that the real estate on which his mortgage rested figured on this inventory as community property, one-half of which belonged to the minor, and that in addition thereto it was subject to the minor’s mortgage, priming his own, for the large sum appearing -on said inventory.
McCan thereupon brought his action in the Second District Court, in which said inventory had been filed and homologated, against Golding, tutor, and the under tutor of the minors, to have said inventory annulled and set aside, to have the real estate placed •thereon declared to be not community property, but the individual property of Wm. Golding, and to order the tutor, Wm. Golding, to state and prove contradictorily with McCan and the under tutcr the true nature, value and amount of the community property and debts.
After issue joined and contradictory trial, judgment was rendered .as above prayed for.
In accordance with this decree, Golding, tutor, presented a petition in the succession of his wife, with a statement of the assets and ■debts of the community, and asked that McCan and the under tutor be cited to show cause why the said account should not be homologated. Both defendants appeared and filed answer, the cause was regularly tried, evidence was heard, and judgment was rendered homologating the account.
■ This account, of course, eliminated the real estate which had figured on the inventory, but placed the amount of the price paid therefor in lieu thereof, making the community assets the same in amount as on the former inventory. But the account supplied what had been omitted in the inventory, a statement of the community debts, amounting to $80,000, leaving a surplus of $840 due the community, of which one-half belonged to the minor.
On the petition -of the tutor and the advice of a family meeting, the minor’s general mortgage was canceled and erased, and a special mortgage on particular property was substituted therefor in the .amount .of $170.
The minor, Wm. D. Golding, having attained the age of majority, brings the present action against McOan, his tutor 'and under tutor, and the above named present owners of the property, in which he asserts the nullity of all the above mentioned-proceedings; asserts the integrity of his rights under the original inventory and his tacit mortgage; claims that he, therefore, remains the owner of one-half of the property included therein, and has a mortgage on the other half; and claims in addition thereto a large judgment against McOan, his tutor and under tutor in solido.
Several exceptions were filed and overruled; but the ease is so clear on the merits that there is no need to consider them:
1. The claim of ownership of one-half of the property has no •foundation in law’. The property was purchased by Golding after 'the dissolution of the community, and, under.the plain text of the ■Code, did not become community property. Rev. C. C., Art. 2402.
The claim that the property was purchased with community funds, and was therefore held under a resulting trust in favor of the community, might have force against Golding if the title remained in him, provided it were shown that the purchase was made with the indentical funds held for the community under the doctrine of Pirtle vs. Price, 81 An. 357; but no such proof of identity is made. And in no case could such claim be maintained against the mortgage - executed in favor of McOan, which was accepted on the faith of the recorded title, and still less against the subsequent bona fide purchasers. Receivers vs. Beauregard et al., 1 Woods, 125.
2. The claim of mortgage must be denied for similar reasons.
. The mortgage in favor of the minor which once apparently rested on this property was canceled by a final decree of the only court which had jurisdiction in the premises, on the proceedings perfectly regular to which both the tutor -and under, tutor were parties, and was duly erased from the records with the advice and consent of a family meéting, and substituted by a special mortgage in the amount fixed by the court. Even.if there were fraud in these proceedings,
3. The sweeping charges of fraud and conspiracy made against the-tutor, the under tutor and McCan, are not sustained by proof and furnish no ground for the relief claimed against the under tutor, McOan, which was properly denied by the judge a quo.
These proceedings furnish no proper base for adjudicating on the special mortgage for $170, recorded against the property now held by the succession of S. B. Steers, and the judge below rightly ignored it. This is without prejudice to the right of plaintiff to assert the same in proper proceedings.
Judgment affirmed.