57 So. 935 | La. | 1912
Four brothers (J. S., J. H., W. S. D., and W. Hamilton) and their sister (Miss Penelope Hamilton) owned in- indivisión a plantation of 3,000 acres in the parish of West Feliciana. W. Hamilton was an inmate of the insane asylum at Jackson, Miss., and .an interdict, and J. S. Hamilton was his guardian, or curator. In September, 1880, J. H. Hamilton brought a suit for partition. In kind, if possible; otherwise, by means of a sheriff’s sale at public auction. Experts, duly appointed and sworn, reported that the property could not be partitioned in kind without diminution of value, and a sale was, in due course of proceedings, ordered to be made for cash, and it was duly advertised. On the day set for it to take place, and just before the crying, the three sui juris brothers agreed in writing to bid in the property, and thereafter divide it between themselves and their sister by assigning to each in severalty a specific part duly described in the agreement. The part of the price of the sale coming to the interdict and his share of the costs were to be paid by J. S. and J. H. Hamilton. The property was adjudicated to the three brothers. Appraisers, duly sworn, had appraised it at $7,500; it was sold for $10,000. Whether there was any competition at the sale is not shown. The parties were unable to agree in the choice of appraisers, and the court had to be applied to to make the selection. From this fact, the inference would be that the suit was not a mere consensual affair. The appraisement was made on the day itself of the sale, January 15, 1881. Whether before or after the said written agreement had been entered into, the record does not show. The sheriff’s proces-verbal of the sale recites that the adjudicatees were “the last and highest bidder,” and that the $10,000 was paid cash. From the fact that the price of the sale exceeded the appraisement by $2,500, the inference would be that there was competition. There is in the record a power of attorney from Miss Penelope Hamilton to one of the brothers, party to the agreement, to receive and receipt for her distributive share of the price of the sale. This power of attorney is dated the day itself of the sale, January 15, 1881. Whether it was executed before or after the agreement was entered into is not shown; but the inference would be that it was before, since it purports to have been executed at Laurel 1-Iill, which is at a considerable distance from St. Francisville, the parish seat, where the sale took place, and where the agreement was entered into. On the day itself of the sale, the several parties gave their receipts to the sheriff for their shares of the price; the brother, agent of the.
It is a petitory action to recover one-fifth undivided of a part of that part of the property that was assigned to the sister, and subsequently deeded to her, under the agreement. It is brought against the person in possession, who is alleged to be possessing without title and in bad faith for himself and as farmer, or lessee, of another. All the facts are alleged in extenso in -the petition, and then the averment is made that the partition suit and sale were fraudulent simulations designed to divest the title of the interdict and enable the parties sui juris to make an amicable partition, and that the said partition and sale, being mere simulations, were-null and ineffective; and that the same were, furthermore, null and ineffective, so far as divesting the title of the said interdict was concerned, for the reason that they were purely consensual, and the guardian of the interdict was without authority to give a valid consent for him.
The grounds thus alleged in the petition are now no longer relied on by the learned counsel for the plaintiff; but the contention now is that no part of the price of the partition sale was paid, and that, as a consequence, there was no sale, and the title of' the interdict has never been divested. And, in support of this, the decision of this court in the case of Miguez v. Delcambre, 128 La. 333, 54 South. 870, is cited.
The present suit being a petitory action to recover the property- — that is to say, a suit which ignores entirely the partition suit and the partition sale — the learned counsel for the plaintiff was wise in abandoning the •said grounds, specifically set forth in the petition, and grasping at some other straw for .saving his case.
In the Miguez v. Delcambre Case, supra, the court expressly said that the situation would have been different if the administrator himself, who, as partner in community, was competent to buy, had taken title.
Judgment affirmed.