Ingram v. Laroussini

50 La. Ann. 69 | La. | 1898

The opinion of the court was delivered by

Nicholls, C. J.

We find in the record the following admissions of the parties:

Civil District Court, Parish of Orleans.

Gborgb Ingram vs. H. Laroussini bt al.

In order to save expense the facts in this case are admitted as follows :

1. It is admitted by the defendant in this case that no certificate of the minor’s mortgage as shown by the inventory in the succession of George Ingram was ever recorded in the mortgage books of St. Tammany parish, where the succession of George Ingram was opened, or elsewhere.

Defendant admits that the plaintiffs in this suit are the only heirs . of George Ingram and Catherine A. Ingram, his wife, both of whom died at the dates stated in the petition herein; and the defendants further admit that the property herein 'sued for is worth three thousand dollars. The plaintiffs herein file a complete transcript of all the papers in the record of the proceedings in the succession of George Ingram and Catherine A. Ingram, his wife, as now found in the clerk’s office of St. Tammany parish, Louisiana, and the defendant admits that the transcript filed is a full and complete transcript of all the papers now in said record.

It is admitted that the rental value of the property herein sued for has been on an average not less than one hundred and fifty dollars per year since the sale to Adam Thompson, on April 4, 1877.

For the Defendant.

It is admitted by the plaintiffs that George Ingram bought the property sued for on March 6, 1875, for the price of fifteen hundred dollars. That said purchase was entirely on credit, and that George Ingram gave to represent the said price of one thousand five hundred dollars, his two notes of seven hundred and fifty dollars, each bearing eight per cent, per annum interest from date until paid. That said act was recorded in the mortgage and conveyance book of the clerk’s office of St. Tammany parish, as stated in the supplemental petition herein, and as shown in the copy of the act of sale which is filed in evidence.

2. It is admitted that as stated in the supplemental answer herein on June 19, 1876, Andrew Patton who was then clerk and representative of Adam Thompson, instituted executory proceedings on the above mentioned note for seven hundred and fifty dollars, maturing March 6, 1876, for the purpose of seizing and selling the property herein sued for, said proceedings being entitled Andrew Pattoil vs. The Succession of George Ingram, No. 1293 of the docket of the Sixth Judicial District Court for St. Tammany parish.

That an order of seizure and sale was signed in said proceedings, but that nothing ever was c one thereon.'

3. Parties hereto admit that the copy of the act of sale of date April 4, 1877, by Mrs. Catherine A. Ingram to Adam Thompson is a true and correct copy of said act and that the said act was registered in the conveyance records of St. Tammany parish, as stated in the supplemental answer herein.

'4. It is admitted by counsel for plaintiffs that the succession of George Ingram was insolvent to a considerable extent.

5. It is admitted that Judge James Thompson, who was the attorney of the succession of George Ingram, would testify that the debts stated in the certificate of mortgages of date April 3, 1877 (found in the transcript of the record of the succession of George Ingram) , were due as stated in the supplemental answer herein, and that no creditor of said succession ever objected to the administration of the said succession by Mrs. Catherine A. iDgram as tutrix.

6. It is admitted that H. Laroussini, the defendant herein, purchased the property herein sued for from the succession of Adam Thompson for two thousand seven hundred and fifty dollars, and on the terms stated in the supplemental answer herein.

7. It is admitted that the average taxes on the property sued for from 1877 to date have been twenty dollars and fifty cents per year, and that said taxes have been paid by said Adam Thompson and the said H. Laroussini.

8. It is admitted that the necessary lessor’s repairs to preserve the property herein sued for, and to keep it in tenantable repair from 1877 to date, amount to at least six hundred dollars, and were expended by the said Adam Thompson and H. Laroussini.

9. It is admitted that the enhanced value of the property resulting from the additions and improvements placed thereon by Laroussini is at least three hundred dollars.

We agree to submit case on above statement of facts and the copies referred to in the pleadings on January 26, 1897.

(Signed) Saunders & Midler, Attorneys for Defendant.

Clay Elliott, Attorney for Plaintiff.

George E. Williams, Curator ad hoe.-

On the 9th of December, 1875, the mother of the plaintiffs applied to the parish court of St. Tammany parish, praying that she be qualified as their natural tutrix. At the foot of her petition to that effect the parish judge wrote an order, of which the following extract covers all that is necessary to be copied for the purposes of this case:

“ Let the prayer of the petitioner be granted, and let her be duly qualified as natural tutrix of the within-named minors, George and Margaret Ingram.”

Appellant contends that this order is fatally defective as an order of appointment. It would have doubtless been better had the parish judge in direct terms declared that he then and there by his order appointed the petitioner (naming her) as natural tutrix of the minors mentioned, but the order is in the form ordinarily used in probate proceedings for the appointment of tutors, for the taking of inventories, for the holding of family meetings, and other similar acts. “ Let an inventory be taken,” “ Let a family meeting be held as prayed for,” is the usual language employed in acting upon applications of that character. Even in executory proceedings asking for a writ of seizure and sale to issue, it is customary for the order to read: “ Let a writ of seizure and sale issue,” instead Of reading: “It is hereby ordered that a writ of seizure and sale issue.”

We see no force in the objection raised. On the 10th of December the mother took an oath before the District Court in which she declared that “ she solemnly swore that she would well a.nd faithfully perform all the duties of natural tutrix of the minors George and Margaret Ingram, minor children of George Ingram, deceased, to the best of her (my) ability. So help her (me) God.”

On the same day the District Clerk issued to her letters of tutorship in which it was declared that she had been appointed and qualified as natural tutrix; that she had complied with and fulfilled all the requirements of the law, and that all her acts as such were entitied to full faith and credit. An inventory of the succession was made, but it was not recorded. In this inventory figured, fully described, the property which forms the object of the present controversy. On the 23d of February, 1877, the widow as tutrix of £he minors filed a petition in which after alleging that the estate of her husband was very much in debt, that the assets were not sufficient to pay the same; that there were mortgages to an amount exceeding seven thousand dollars existing against the real estate, being many times more than the value thereof, and that the movables would not suffice to pay the privileges thereof, prayed for and obtained an order for the sale of all the property, real and personal, for cash. It is admitted that the recitals of the tutrix’ petition were true. It appears that at that time the property in question was affected by a special mortgage and vendor’s privilege securing the payment of two promissory notes representing the purchase price which the deceased had agreed to pay for the same; that Adam-Thompson, through his clerk, had applied for and obtained an order for the seizure and sale of the property to satisfy his claim, he being the holder of either one or both of said notes.

This order was not followed up, but the widow and tutrix came forward and applied for and obtained the order referred to for a sale of all the property of the succession.

By so doing she waived the necessity of the various services upon her which the law would have called for under the executory proceedings had they been continued and carried on to completion. The sale took place under the probate order with this order of seizure and sale still standing unrevoked though not yet executed. Possibly Adam Thompson might have had legal ground of complaint of a sale of the property made through such an order, but we see no legal ground of complaint which these minors could urge on that account. Can it be said that the minors could receive, or did receive, any injury from the mere fact that the tutrix, instead of permitting the sale to be consummated as prayed for, with herself proceeded against as defendant in executory proceedings, should have herself, as tutrix, taken up the,proceedings about to be carried into effect and caused them to be executed under probate, instead of ordinary jurisdiction. The same result would have been reached by either proceeding. The sale woifld have been made for cash, by the sheriff, under either order, and we fail to see how the minors could have sustained any damage in the premises.

There can be no question that if plaintiffs’ mother was not their tutrix at that time (as they claim she was not), that Adam Thompson could have legally proceeded against a tutor ad hoe, who would not have been compelled to give bond, and that their title or interest (if any such they can be said to have really had) would have been legally divested without reference to the fact whether plaintiffs’ rights were secured by mortgage or not, and without reference to the advice of any family meeting.

The relations of the minors to the property were, under the circumstances of this case, really nominal. They were heirs of their father, it is true, by effect of law, but they were beneficiary heirs, and their father’s succession was insolvent. Their tutrix would not have been entitled, simply as such, to have administered the succession, without security, if the creditors had objected. Her administration, as tutrix, without opposition, did not increase the rights of these minor beneficiary heirs in this property beyond what they would have been had their mother been forced to apply for and had obtained an appointment as an ordinary administrator of the succession. Her administration was in the interest of the creditors, as matters stood, rather than in the interest of the minors. The minors would have been entitled had their mother been forced by the creditors (by reason of their being beneficiary heirs), to qualify as a regular administratrix, to receive only the balance which would have remained in the succession after payment of all debts. O. 0. 1058. Time has not extended their rights so as to authorize them, without incurring any obligations whatever, to take away from their father’s creditors that which they were justly and legally entitled to have applied to the payment of their claims. Plaintiffs’ demands are utterly without equity. At the sale which they seek to have declared null, the holder of the vendor’s privilege notes (representing substantially the rights of the vendor himself), by purchasing the property, simply regained the ownership of the property on which not one dollar had been paid, nor has been paid up to the present day, if the sale passed no title to the adjudicatee. Plaintiffs’ proposition is that they can wrench this property out of the ownership and possession of the purchaser through the law, without the payment of a cent for it. The law works out no such result through force of a provision in a statute which was intended to protect the actual interests of minors, and not to enable them to enrich themselves at the expense of their father’s creditors. When a case is presented to us in which minors have been really aggrieved by the failure of the court officers or of their father or mother to have recorded the abstract of inventory, by the recording of which they would have acquired a mortgage on their tutor’s property to secure the faithful performance by them of their duties, it will be time enough to pass upon the effect of an appointment of tutrix and of issuing of letters of tutorship to a tutrix without the recording prior thereto of the abstract of inventory which the law directs should be placed of record.

The order "of the parish court directed the sale of all of the property of the succession, real and personal. This property belonged to- • the succession and its sale was covered by the terms of the order.

Plaintiffs complain that the prooes verbal of the sale of the property does not contain a description of the same. It is true that it does not do so directly in the body of the prooes verbal, but the sheriff annexed thereto a certified extract from the inventory of the succession and also a copy of the advertisement under which the sale was-made, and having declared that he had done so, declared that he had advertised for sale according to law the property described in the annexed extract from invantory, and after reading-the advertisement, had offered said property for sale; that after receiving various offers he had adjudicated said real estate described in said inventory to Adam Thompson for the sum of seventeen hundred dollars, being the owner of the first mortgage and vendor’s privilege, amounting with interest to the sum of seventeen hundred and forty dollars, the said purchaser retaining the same in his hands, less the sum of forty-two dollars, cost of selling the said property.

In addition to this the tutrix and the purchaser appeared, on the 4th of April, 1877, before a notary public, and the former made a formal and complete deed of the property to the purchaser, fully and minutely describing'it as it had been described in the advertisement and inventory under full recitals as to the facts and circumstances under which she made the deed. The purchaser and the defendant have been in possession of the property under the adjudication and deed ever since that date.

It would have been much better for the sheriff to have given a complete description of the property in the body of the proees verbal than to have described it by reference to annexed documents which might have become detached and rendered identification difficult, but they were not in this instance detached, and there can be no question as to what property was ordered to be sold, what was advertised to be sold, and what, in point of fact, was sold to Adam Thompson. We think the objection raised to defendant’s title on these grounds is without foundation. O. P. 690, 695. We think the District Court has dealt with the ease according to law and the evidence and according also to equity.

The judgment appealed from is affirmed. .