38 La. Ann. 675 | La. | 1886
John W. Scarborough as the administrator of the estate of Mary B. Mason, deceased, and as curator of the estate of Alice T. Mason, an interdict, alleges that said estates are the joint owners of one undivided half interest in a plantation adjoining the city of Monroe, on the south, and known as the Big Place, comprising 863 31 -100 acres, worth in 1871 and now $25,000, by inheritance from their mother, Mrs. Hannah Mason, nee Bey; the other half being, by inheritance, the property of Mrs. M. T. Layton, wife of Robert Layton.
Plaintiff represents that in pursiiance of an order of court the father and natural tutor of the two heirs whose estates he represents caused their half interest to be sold for $27,000 — all on time — with mortgage and vendor’s lien retained, to their co-owner, Mrs. M. T. Layton, who gave her notes.
On these notes sums had been paid, aggregating $9,471, when suit was brought to euforce the collection of the balance due, in which a linal judgment was rendered releasing Mrs. M. T. Layton from all liability thereon, but annulling the sale, and restoring the property, as will appear by reference to the suit of Forbes, executor, vs. Mrs. M. T. Layton, 34 Ann. 975.
Plaintiff claims that Mrs. Layton has had possession, and enjoyed the revenues of said plantation since 1871, worth $2,000 per annum, and during the time the title stood in her name she sold off building-lots for sums aggregating- $4,550, and the estates he represents are entitled to one-half thereof — $2,275, or a total amount due to them for revenues and sales of $17,275, and he demands a partition of the real estate by licitation and a settlement of rents, and the proceeds of sales.
Mrs. Layton, in her individual right, appears and excepts on the ground that plaintiff, as the representative of the parties named, is not owner of the property in controversy, and has no capacity to stand in judgment, and shows that by virtue of the sale of 1871, all the right, title and interest of the persons named in said property was sold to Robert Layton, her husband, who owns same and the use of her name as purchaser — but who was without the legal capacity to purchase— did not prevent the legal effect of said sale on the divestiture of their title, and its investiture in the community then and noio existing between her and her husband, Robert Layton, and she prays that plaintiff’s suit be dismissed.
She urges as an estoppel against the assertion of her liability for revenues and the proceeds of certain sales, certain judicial admissions
She pleads the general issue, claims the ownership of one undivided one-half interest in the property; denies that same was ever under her separate administration and control, and consequently any responsibility for the revenues; and pleads the prescription of one, three, five and ten years in bar of plaintiff’s action.
In the petition Robert Layton was mentioned only as being the husband of defendant, and as such he was cited.
“ When one intends to sue a married woman for a cause of action relative to her own separate interest, the. suit must be brought against her and her husband.” C. P. 118.
The husband was not otherwise named or cited as a defendant. The community is, therefore, not before this court, and the wife has no authority to represent it, or to stand in judgment for it. Hence, we need not notice the assignment of error filed in this Court. In this manner new issues caunot be engrafted on this suit, nor a judgment of this Court — which, in so far as he is concerned, was res inter alios acta — be assailed!
This view dispenses us from any consideration of the claim of title in the community, and of its incidents, embracing the demand for the sum of $9,471 paid on the price of sale in 1871. 24 Ann. 295; 28 Ann. 624; R. C. C. 2404.
If the community is not a party for one purpose, it caunot be for another — if not in respect to the title, it cannot in respect to any part •of the revenues of the property sought to be partitioned.
Plaintiff’s right to recover same of Mrs. Layton depends upon the proper averment and pi’oof of her having operated aud used this property. This has not been done — could not be done. For if she was not purchaser, in her paraphernal right, it could not have been legally under her administration, and she could not be chargeable with its revenues, nor an account demanded of her for them. 86 Ann. 511, Succ. of Boyer.
In Forbes vs. Layton the Court said: “There was judgment, relieving the defendant from the debt, annulling the sale, and putting the parties in the condition they stood prior to the transaction.” This judgment was affirmed. 34 Ann. 976.
For a like reason we are also dispensed from passing upon defend
Prescription does not run against the action for partition, nor the settlement of accounts. R. C. C. 825; 14 Ann. 740; 16 Ann. 170; 12 Ann. 354, Aiken vs. Ogilvie.
The argument of counsel that the decree of this Court in Forbes vs. Layton, was ultra petitionem, cannot bo noticed. It was and' is a valid and binding judgment, and between the parties, forms res ad¿udicata. R. C. C. 2286; 16 Ann. 365, Bouvillain vs. Bourg.
On this theory defendant has shown herself without interest to dispute plaintiff’s title — the judgment in Forbes vs. Layton will protect her title under a partition made under a decision in this suit.
Defendant’s exception that “plaintiff, as the representative of the parties named,” is without?capacity to stand in judgment was properly overruled by the district judge, and the same objection assigned as error in this Court is unavailing.
John W. Scarborough is the duly qualified administrator of the succession of Mary B. Mason, deceased, and curator for the estate of Miss Alice T. Mason, his appointment having been duly recommended by a family meeting and their proceedings duly homologated, as the evidence attests, and his capacity to stand in judgment is fully verified. The defendant did not except that the curator had not been “specially authorized by the judge, on the advice of the family meeting,” to institute this suit, and that objection cannot be inferred.
It is, therefore, ordered and decreed that the judgment appealed from- be affirmed, in so far as same relates to the partition of the property; and that same be annulled, avoided and reversed in all other respects — parties to pay costs of appeal ratably.
But we will reserve the right of all parties to have their respective claims determined in some proper proceeding.
