3 Mart. (N.S.) 409 | La. | 1825
delivered the opinion of the court. This suit appears to have grown out of the decision of this court in the case of the heirs Chesneau vs. Sadler. That was an action in which the plaintiffs claimed certain property descended to them from their mother, and which their tutor had alienated contrary to law. The defendant set up title to it under the plaintiff in this case, and cited him in warranty. The judgment of the court was in favor of one of the petitioners, and against the
To this petition the defendants pleaded:
1. That the plaintiff could not maintain this action, because he had no interest in the cause, having received full compensation from the defendants' tutor for all claims against the succession of their mother.
2. That all the facts and allegations in the plaintiff’s petition are untrue.
3. That the will under which he claims is null and void.
4. That if the petitioner be entitled to any thing, it is only his share in the profits which might have resulted from the community with his deceased wife, but which profits the defendants deny to have ever existed.
To these means of defence were subsequently added the pleas of res judicata, and prescription.
The court of probates was of opinion that all the matters and things in dispute between the present parties, had been decided in the case of the heirs of Chesneau vs. Sadler and gave judgment in favor of the defendants, as in case of nonsuit. From this judgment the plaintiff appealed.
The first plea of the defendants, that the plaintiff has no cause of action against them, cannot be correctly examined, until an enquiry is gone into, in relation to the original contract between the tutor of the defendants and the petitioner: and the rights which accrued to the latter from one of the heirs having sued and recovered part of the property conveyed in it. That of res judicata needs no such previous examination, and its validity is the first question for our consideration.
This court is unable to discover any, the slightest ground in support of the decision of that of the first instance, that the matters and things now at issue in this cause, were decided in the case of the heirs of Chesneau vs. Sadler.—
This is so manifest in respect to the heir who succeeded in that action, that the point was not much debated by the appellees’ counsel; but he urged that the plea, applied at least,
Whether the plaintiff might not have set up when cited in warranty, the same claims which he does now, need not be enquired into. The fact is, he did not do so, and that is sufficient to prevent him being barred by the judgment there rendered, as the matters and things now contested, were not necessarily embraced by it.
The plaintiff rests his claim to a partition of the whole of the estate of his late wife, upon the ground, that the act under which he claimed the property, being a partition of the estate in community, between him and his coheir, it follows, that if annulled as to one, it is void to all the parties who concurred therein.
For the better understanding of the different questions raised, in this case, it is necessary to set out the material parts of the act under which the present plaintiff acquired the prop
The mother of the defendants, by last will and testament, gave to her husband, the present plaintiff, the usufruct of one-fifth of all the property owned by her at her death. After her decease, difficulties arose between the tutor of her children, and the plaintiff, in relation to his rights under the will, and a claim which he set up for acquests and gains, made during marriage. These difficulties ended by the parties entering into an agreement, by which the plaintiff waved certain property, and abandoned all claims to the succession.
The act which evidences this agreement, purports to be executed by Jean Goodwin, of the one part, and Nicholas Girod, tutor to the children of Jean Chesneau, of the other.
It states that the parties, to avoid all kinds of dispute which might arise between them, in relation to the partition of the succession of Mrs. Susan Drouet, widow of Jean Chesneau, deceased, had entered into the following agreement:—
That the said tutor abandoned to the said Goodwin certain properly therein mentioned.
This act is said to be a partition and not a transaction. Whether the former be included in it or not we will hereafter examine; but that it is at all events the latter, there cannot be a doubt; rights are claimed by one party; difficulties with regard to giving them effect feared by both; property delivered to procure an abandonment of them; and that abandonment made. Our code defines a transaction, an agreement by which two, or more persons, for preventing or putting an end to a law suit, adjust their differences by mutual consent. It is unnecessary we conceive to go into any reasoning to shew, that the contract here submitted to us, is most clearly within the meaning of this provision; or that the plaintiff himself has committed no error in denominating it a transaction,
But notwithstanding this is the true character of the act; it does not follow that it may not also have operated a division of the succession. Transaction may embrace partition, as partition includes alienation and sale. Civ. Code, 186, art. 162.
But whether this act include partition strictly such, may well be doubted. It seems to wart all the characters of one. It was clear the parties did not contemplate it to be such. They expressly declare the agreement is entered into to avoid the difficulty of partition. Common effects are not divided. On the contrary the husband receives in full property that in which he could only have had a usutruct, and he is discharged from the payment of all debts due by the succession.
In one point of view indeed the act may be considered as a partition, and that is, as terminating the indivision of property which existed between the parties; not by separating the things of the estate, but by dissevering the right which existed in them. Every act which
It is in this sense the court understands the elementary principle of our law, that the right to partition cannot be renounced; and it was for the reason just stated, and in order to prevent an evasion of the rules in respect to lesion which govern transactions of this kind; that a fiction was introduced, that all acts which put an end to the community of property existing between parties, no matter of what nature those acts are, or by what named called, are regarded as partitions. Civ. Code, 186, 159. Chabaud on Successions, vol. 3, 704. Toullier droit civil Francais, lib. 3, tit. 1, chap. 6, no. 577.
But it does not follow that the same rules which govern partitions really such, apply to every act by which the community of property is destroyed. Our code furnishes us, with express authority to the contrary. In ordinary partitions, it suffices to cause rescision that there be lesion of more than one-fourth part of the true value of the things partaken. But if this partition is affected through a transaction,
Yet in the case last put, there is clearly, in fiction of law, a partition; that is, the community of property is destroyed. The rule then, we see, has its exceptions; and it is not correct to say, that in all cases, where the community is dissolved, the principles which govern partitions, must regulate the contract of the parties.
On the contrary, we conceive that unless the provisions of the law, in respect to lesion be violated; agreements, by which the right of one heir in a succession, are transferred to another heir, or to a third party, must be governed by the rules applicable to that species of contract, by which the transfer is made; whether it be sale, exchange, donation, or in any other mode.
The question is in some measure novel, but we are not without authority on it. We have the judicial exposition of laws, which are verbatim the same as ours. One of the heirs to a succession opened in France, sold his right in it to a co-heir, who failed to pay the price. On the former attempting to enforce the con
In the instance now before us, unless we shut our eyes on truth, and indulge in fiction, we cannot mistake the real character of the act on which this difficulty has arisen. So far from it being a partition of property held in common, it contains an abandonment of all right to it; objects which belonged to the heirs, and on which the step-father had only the usufruct for life, are given to him in full property. In consideration for the property thus received, and in consequence of being released from the pay
On the contrary, it appears to us, an acquisition on the part of the plaintiff, of property belonging to others, and for which he gave his rights on a succession in return. Such agreement formed a contract of exchange, which is defined to be, where “the contractors give to one another,one thing for another, whatever it be, except money.” C. Code, 370, 1.
In case of eviction, the party evicted has his choice, either to sue for damages, or for the thing he gave in exchange. If that thing be still in the possession of the minor, by whom he was evicted, the plaintiff has the right to get it back. C. Code, 370, 4.
And this brings us to an exception, made in an early stage of the proceedings, that the plaintiff had no cause of action, the right being
The only ground which the court can imagine this objection to rest on, is, that as the plaintiff has not shewn that he has paid Sadler, he has suffered as yet no injury from the eviction of which he complains; or in other words, that no cause of action arises in favor of the first vendee, by the person to whom he sold being evicted, until it is shewn the latter has exercised his action of warranty, and recovered.
This objection, (which on the first consideration, appeared to be supported by analogies drawn from the rights of persons, standing in some respects, in the same situation with the plaintiff,) cannot be maintained. By the warranty, the vendor contracted, not only that the vendee should not be evicted, but that all other persons who held under the buyer, should enjoy the thing. There is an exception to this rule, where the first vendee alienates without warranty. Because he is then without any interest whatever in the matter. But in every other case his right of action is complete, the moment the person to whom he sold loses it by a superior title, Dig. liv. 21, tit, 2, l. 61, 71 Pothier, traité du vente, no. 97.
The other questions raised in argument, belong to the merits; and as the cause is not now in a situation in which final judgment can be given here, no opinion can be expressed on them.
It is therefore ordered, adjudged and decreed, that the judgment of the probate court be annulled, avoided and reversed; and it is further ordered, adjudged and decreed, that this cause be remanded to the court of probates, to be proceeded on according to law, the appellees paying the costs of this appeal.