2 La. 518 | La. | 1831
The plaintiffs bring this action against Harty, their mother and tutrix, for an account and settlement of their estate administered by her, and against Sinnot, her second husband, for having possession of the property left them by their deceased father.
Sinnot pleaded specially that he was not the husband of the tutrix — a general denial — and claimed, in reconvention, the sum of six thousand dollars, which he averred the widow and heirs owed to him.
The tutrix pleaded, that she had rendered an account to her minor children in 1816; and at that time a partition was made between them; and that she has no further account to render, except in relation to the proceeds of a house and lot which had been set apart to her in the partition, and her title to which had been since annulled by proceedings at law.— See 8 Martin, N. S.. To this answer she annexed the account filed by her in 1816.
To this account the plaintiffs presented an opposition, on the following grounds;
That a large proportion of the property inventoried at the death of their father, as community property, and so considered in the account filed, was, in fact, brought by the father into marriage, and belonged to him exclusively:
And that they are also entitled to the hire of three slaves, for which they do not intend to bring suit, as they are either dead or greatly diminished in value.
To this opposition a detailed account of various charges, made by the heirs against their mother, was annexed. The court of probates rendered judgment, sustaining the opposition in some parts, and overruling it in others. From this judgment Sinnot appealed.
It has been agreed by the counsel that there is no difficulty between them as to the property which is alleged to be community on one hand, and claimed to be that of one of the spouses on the other; and that our decision is required alone on the legal questions which have been discussed at the bar.
The first of these is in relation to the claim of one of the heirs, Artemise, to a proportion of the proceeds of the house and lot, originally adjudicated to the mother, but which adjudication has been since annulled at the suit of the plaintiffs.
After her marriage her husband received from her mother, who was tutrix, his wife’s share of her father’s estate. The amount due to her was settled on the basis of the account rendered in 1816; and in that account the mother was debited, and the heirs were credited with the price at which the house and lot in question had been adjudged to the mother Some time after the husband failed, and his wife presented herself as a creditor, and claimed from his estate the amount which he had received on her account from her mother. In this amount, we have already seen, was included her share of the price of-the house and lot to which she now sets up a demand.
We think that this was clearly such a ratification, on her part, of the adjudication to her mother, as covered (so far as she was concerned) all informalities in the mode in which it had been alienated; and that she is precluded from demanding the thing, after having attempted to obtain the price. Her counsel have insisted that as she was unable to obtain from her husband’s estate the whole amount received by him, the ratification must be limited to the sum recovered. But this argument appears to us to rest on an entirely erroneous view of the principles on which eifect is given to the approbation evinced by minors, after they arrive at the age of majority, of the acts of their tutors in relation to sales of their property. They have the power to affirm or disavow the contract at their pleasure; and they may make their affirmance depend on the condition of being paid, or any other condition they please. But if they do an act shewing their approbation, and evincing their intention to carry that contract into eifect without any reservation on their part, they cannot afterwards at their pleasure annul it, on the ground that the course they adopted was not profitable or useful to them. They are subject to the rules which govern all other principals, who assent to acts of their agents.
The house and lot which was adjudged to the mother W'as restored by a decision of this court to the succession. The minors claim their share in the rents of that house from the time it came into the hands of the tutrix up to the sale of it, under the recent decision of this tribunal; and this claim, we think well founded. The minors property was acquired by the tutrix under proceedings provoked by her. These proceedings were not conformable to law She was in consequence of this informality, technically a possessor in bad faith, and must account for the fruits or rents from the time the property came into her possession under the adjudication. They are also entitled to an account of the rents during the time their mother held the house and lot as their tutrix previous to the adjudication; that is, from the month of Oc ■ tober, 1813
¡ngU}ry appears only to be of importance in sét-tling the question, whether the rents are due from the time °f the emancipation of the minors, or from the inception of suit to annul the sale; for by an entry on record, we perceive the parties have agreed, “that the boarding, lodging, and education of the plaintiffs, by their mother, during their minority, and up to the time of their emancipation, or majority, was equal to the full revenue of their respective estates, and the interest thereon.” The parish court gave the rents from the time the female heirs were emancipated by marriage, and in this we think decided correctly. It also decided, f^e rents should be paid to the male heir from the time .... he became an apprentice; butm this part of the judgment we cannot concur. The agreement on record controls the v5ght to claim until after emancipation, or majority. Bind-jng a child to learn a trade does not emancipate him, and the evidence shews the plaintiff did not reach the age of majority, until a considerable time after his apprenticeship commenced.
There is a claim set up for the hire of three slaves which were adjudged to the mother; the plaintiff’s at the same time stating expressly that they will not claim the property, because it has diminished in value.
When minors come of age they may confirm irregular alienations of their property and demand the price, or they may disavow them and claim the thing and its fruits Rut • . . , , they cannot do both; and yet that is what they do here, They are willing to accept the price at which the property is sold’and demand the fruits or hire,as if it had remained unsold. This cannot be done. If they decline to annul the gaje jt gtan{js ag a ]ega| one. Their right is in the proceeds of the property, and not to the property; and they may demand the interest on the amount produced by the sale, together with the principal, but nothing more.
They next demand the interest on the price of property
Another question was submitted for our decision. It is contended that the plaintiff,. Artemise, by claiming from1 her husband’s estate the amount received by him from her mother, not only affirmed the alineation of the lot, but also waived all errors which might be in that account, and .is now precluded from taking advantage of them, we cannot assent. To tills position m, . ^ n . , Ihe receipt ot the money from the bus-band, cannot have a greater effect than the receipt from the tutrix herself would have had: and, that would not iiave been a bar, because every settlement between the tutor and the minors arrived at the age of majority is void, which is •not preceded by an account and delivery of vouchers, ten days before the receipt is signed; and these facts must appear by the receipt. — Civil Code 72, art. 76.
It is therefore'ordered, adjudged, and decreed, that the judgment of the Parish Court be avoided, reversed, and annulled, and that this cause be remanded, with directions to give judgment agreeably to the principles laid down in the foregoing opinion; the costs to be paid out of the funds deposited in the said court.
