197 So. 424 | La. | 1940
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *771 Page Mason Himel is suing Mrs. Clara Himel Connely for a third of $8,000, on a *772 written instrument dated June 11, 1918, signed by Mrs. Connely and declaring that she received on that day from her mother, Mrs. Lavinia Barton Himel, the sum of $8,000 as an advance on her portion as an heir, and subject to collation. The plaintiff is a grandson and is one of the three forced heirs of Mrs. Himel.
The defendant filed a plea of res judicata and a plea of prescription of five years. The pleas were argued and submitted without the offering of any evidence except the judgment on which the plea of res judicata was founded, and the petition on which the judgment was rendered. The judge maintained the plea of res judicata and dismissed the plaintiff's suit. He is appealing from the decision.
The outlines of the case are given in the pleadings and briefs, and are not disputed. Mrs. Lavinia Barton Himel died on December 14, 1922, leaving three forced heirs, namely, (1) Page Mason Himel, a grandson, who is the plaintiff in this suit, (2) Mrs. Clara Himel Connely, a daughter, who is the defendant, and (3) Mrs. Marguerite Dowdoin Colmore, a granddaughter, who is not a party to the suit. Page Mason Himel was the only child of Clairville Himel, who was the only son of Mrs. Lavinia Barton Himel, and who died in March, 1918. Page Mason Himel therefore inherited a third of the estate of his grandmother by representation. Mrs. Marguerite Dowdoin Colmore also inherited a third of the estate by representation. She was the only child of Mrs. Flora Himel Dowdoin, who was a daughter of Mrs. Lavinia Barton Himel, and who died before her mother died. *773
At the time of the death of Mrs. Lavinia Barton Himel she owned three mortgage notes amounting to $15,625, signed by her son, Clairville Himel, and representing a part of the price for which she had sold her plantation to him. The notes were in the possession of Mrs. Olive Dodd Himel, widow of Clairville Himel, and natural tutrix of her child, Page Mason Himel. He was six years old when his father died, and less than eleven when his grandmother died. The dative testamentary executor of the estate of Mrs. Lavinia Barton Himel sued Mrs. Olive Dodd Himel, as tutrix of Page Mason Himel, for possession of the three mortgage notes. She pleaded that the notes were paid, and, in the alternative, that the debt, if not paid, was prescribed. The court decided that the notes were not paid, and, without deciding whether the debt was prescribed, ordered that the notes should be delivered to the executor. On appeal the judgment was affirmed. Sigur Martin, Executor, v. Mrs. Olive Dodd Himel, Tutrix,
In response to that petition the judge rendered a decree in which he did nothing more than he was asked to do; that is, to discharge the executor and order his bond cancelled. To show how limited in its scope was the consent judgment that was rendered we publish a complete copy of it here viz.:
"This cause came before the court upon the petition of the dative testamentary executor, joined by all the heirs of this estate, that the administration of this estate be closed, the executor discharged and his bond cancelled, and it having been shown to the court that the executor has never had possession of any funds or property belonging to the estate, and that all the heirs are satisfied that the executor be discharged and his bond cancelled. *775
"It is therefore ordered, adjudged and decreed that Sigur Martin, dative testamentary executor of this estate, be and he is hereby discharged and relieved of his trust as such executor, and that his bond as such be and it is hereby discharged and cancelled."
A judgment obtained by the consent of all of the parties to a suit gets its binding force and effect from the consent which the parties give, rather than from the doctrine of res judicata. Girod's Legatees v. Pargoud, 11 La.Ann. 329; Greenwood v. City of New Orleans, 12 La.Ann. 426, cited with approval in Dunn v. Pipes, 20 La.Ann. 276.
As far as the evidence in this case goes, all that was compromised or settled among the heirs of Mrs. Lavinia Barton Himel, in the suit in which they asked for and obtained the judgment which is relied upon now to support the plea of res judicata, was the litigation over the three mortgage notes amounting to $15,625. It was so alleged in the petition of the executor and the three heirs, asking for the discharge of the executor, thus:
"That the only assets of this estate were three mortgage notes for the sum of $5,208.33 1/3 each, the ownership of which notes has been in litigation between the executor and one of the heirs since the appointment of the dative testamentary executor.
"That a compromise has been effected among the heirs whereby an end has been put to the said litigation to the complete satisfaction of all heirs. *776
"That said executor, having had no assets to administer upon, and having had no funds in his hands, has no accounting to make."
The declaration in the second paragraph which we have quoted, that a compromise was effected by which the heirs put an end "to the said litigation", has reference to the litigation over the ownership of the three mortgage notes, referred to in the first paragraph which we have quoted. It was not alleged that any other compromise or settlement was made, such as might estop Page Mason Himel from bringing this suit.
It is alleged by the plaintiff in this case that the debt of $8,000 which Mrs. Connely owed to the succession of her mother appeared on the executor's account and was acknowledged by Mrs. Connely; but no reference was made to that debt in the judgment which is relied upon in this case to support the plea of res judicata, or in the petition on which the judgment was rendered. The judgment therefore cannot serve as a basis for the plea of res judicata in bar of this suit to collect the plaintiff's share of the alleged debt of $8,000.
"The authority of the thing adjudged takes place only with respect to what was the object of the judgment." Rev.Civ. Code, art. 2286.
"The doctrine of the common law courts that res judicata includes not only everything pleaded in a cause, but even that which might have been pleaded, does not obtain generally under our system." Woodcock *777
v. Baldwin,
There are decisions recognizing three exceptions to the general rule which we have quoted, but the exceptions are not pertinent to this case. One of the exceptions that was made is that in a petitory action the parties to the suit must assert whatever titles they have, and not hold back any claim for future litigation. Shaffer v. Scuddy, 14 La.Ann. 575; Heirs of Brigot's Heirs v. Brigot, 49 La.Ann. 1428, 22 So. 641; Howcott v. Pettit,
The plaintiff alleges in his petition that he was not informed until January, 1938, of the fact that Mrs. Connely had received the $8,000 from her mother subject to collation and that she had not accounted for it in the succession. He alleges also, however, that, upon his receiving this information, his attorney examined the record in the proceedings entitled Succession of Mrs. Lavinia Barton Himel and found that it was declared in the succession proceedings, in October, 1926, that Mrs. Connely admitted that she had received the $8,000 subject to collation. If we add this debt of $8,000 to the $15,625 represented by the mortgage notes which the succession of the *779 plaintiff's father owed to the estate of Mrs. Lavinia Barton Himel, we see that the value of the estate was $23,625; and, as Mrs. Connely was entitled to one-third of that sum, or $7,875, as her third of the estate, she was obliged to pay only $125 to the succession, or $41.66 to each of the two coheirs, in order to settle the debt of $8,000 which she was obliged to collate. It is highly probable, therefore, that the debt of $8,000 was accounted for and compensated and extinguished at the time when the three heirs petitioned the judge to discharge the executor. But there is no proof in the record in this suit that the debt of $8,000 which Mrs. Connely owed to the succession of her mother was settled in that way. If it was so settled, the defendant in this suit should set up the fact in answer to the suit, or in some appropriate plea, and offer some proof of the fact.
It is not contended by the defendant that the plaintiff has no right of action because collation is made only to the succession of the one who advanced the money. It is not contended that the plaintiff lost his right to demand collation by consenting to the discharging of the executor and the closing of the succession. Such a plea might deserve consideration, in the light of the provisions of the Civil Code on the subject, particularly article 1242 — notwithstanding it was decided in the case of Benoit v. Benoit's Heirs, reported in
The record leaves some doubt whether the judge overruled the plea of prescription of five years before he maintained the plea of res judicata. The attorney for the defendant and the attorneys for the plaintiff both ask that we dispose of the plea of prescription if we do not maintain the plea of res judicata. Considering that a plea of prescription is one which may be filed originally in an appellate court, we are warranted in considering and disposing of the plea in this case, especially at the request of both parties, even though the record does not show that the judge of the district court passed upon the plea. It is based upon the provision in article
In the Succession of Skipwith, 15 La.Ann. 209, it was held that a suit to compel an heir to collate a debt due to his father could not be barred by prescription accruing after the opening of the succession of the father. In the Succession of Cucullu, 9 La.Ann. 96, it was held that an heir who took the benefit of the bankrupt act was not thereby relieved of his obligation to collate in the succession of his father advances made to him by the father. And in the Succession of Bougere, 28 La.Ann. 743, it was held that, on the principle announced in the Succession of Cucullu, the obligation of an heir to collate a debt due to the succession of his father could not be released by effect of prescription accruing after the death of the father. On that subject, the court said on page 748 of the report in 28 *782
La.Ann: "It has been held that a discharge under the bankrupt law does not release an heir from the obligation to collate. Succession of Cucullu, 9 La.Ann. 96. Upon the same principle the heir can not plead against collation that the debt which he owes is prescribed." An action to compel collation is like an action for partition of a succession, in that the obligation of an heir to collate is subject to being offset or compensated by his interest as an heir in the succession. It is not necessary to decide whether a suit to compel collation is subject to the prescription of 10 years under Article
The judgment appealed from is annulled; the plea of res judicata and the plea of prescription of five years are overruled; and the case is ordered remanded to the district court for further proceedings consistent with the opinion which we have rendered. The defendant is to pay the costs of this appeal. All other costs are to abide the final disposition of the case. *783