15 La. Ann. 119 | La. | 1860
The appellant states his case as follows :
“ The plaintiffs having obtained judgment against defendants for thirty-two thousand one hundred and fifty-two dollars and ninety-two cents, caused certain squares of ground in the town of Rickerville, parish of Jefferson, to be seized and advertised for sale.
“ Samuel Ricker, one of the defendants, as tutor of his minor child, filed a petition of opposition to said seizure, in which he asserts that the property seized is the property of liis said minor child.”
“ The plaintiff, in answer to the petition of opposition, avers (in substance) that the property seized is the property of his debtor, Samuel Ricker, Sr., and of no one else, and that his seizure is legal and proper.”
“ The case being tried before a jury, they found a verdict in favor of J. H. Pearson <£ Co.”
“ It is respectfully submitted : That the Judge of the District Court erred in refusing to charge the jury that the plaintiff could not test the validity of the minor’s title to the property by an immediate seizure, but that he was bound to resort to a revocatory action to cause the title to be vacated, so far as it operated to his injury. He should, by suit and judgment, have first obtained a decree subjecting said property to the execution of his judgment.”
We shall confine ourselves to the consideration of the sole question presented by appellant’s brief.
The proof shows that the interest in property partitioned was acquired during the existence of the marriage between the mother of the minor and Samuel Ricker, his tutor, and although taken in the name of the wife, in the absence of proof that it was paid for ont of her paraphernal funds, belonged to the community. 0. 0. 2371. The subsequent partition of the property between the minor and third parties did not have the effect to divest the community of its ownership of the same.
The judgment debtor and the tutor being the same person, the possession followed the title.
The ease, therefore, does not present the question of the seizure of property in the hands of a third person who has possessed as owner for more than a year, and who is entitled to maintain Ms possession nnder the possessory action, nor the case where the third person has, by a real though fraudulent sale, acquired title from the debtor himself.
The question is one merely of ownership, and the opponent must recover, if at all, on the strength of his title. The revocatory action was not needed, for there was no title emanating from the debtor to be annulled. There was, therefore, no error in the charge of the District Judge.
The judgment of the lower court is, therefore, as so understood, affirmed, with costs.