Jacobs v. Lewis's Heirs

| La. | Apr 15, 1835

Martin, J.,

delivered the opinion of the court.

The plaintiffs in this case, claim to be transferees of the portions or shares of several of the heirs of the late Robert Lewis, deceased, and demand an admission of their claims, and seek a partition of said estate, between them and the co-heirs of their transferors. The defendants and co-heirs being absentees, an attorney was appointed by the court, to defend their interests. He did not deny the allegations in the petition, but submitted the case to the decision of the court. The partition was found extremely difficult and inconvenient to be effected, in any other manner than by a licitation. This was attempted. The estate was put up at auction, but the appraised value was not bid, and there being several minors among the defendants, the register of wills declined adjudicating the property, and there ivas no sale. The Court of Probates finally directed the property to be sold for whatever price it would bring/ From this decision, the defendants appealed. The correctness of the opinion of the court on this point, is the only question-submitted for our solution and decision.

jTbe general lands and slaves norsF8cafno°tTe sold for less than their appraised value. But the UmFprovokMibv a eo-heir, or co-proprietor, to effect apartilion, and^utTnSnOTs ?'lg. wúífpersons of full age. ,. Tlic pfoMbilion against aheRating minors’ FhanTts^appraiscase of a jodghim on a” licitalion, made a:.the instance of a coheir or other co-

On this point, there seems to be little difficulty. It is true, the Louisiana Code, article 837, expressly declares that the lands or slaves, belonging to minors, shall not be sold for a less sum than its appraised value. But the case of a licitation . . . . or sale, at the instance of a co-heir or other co-proprietor, in order to provoke a partition, is expressly excluded by article 339 of the Code, from the prohibition contained in r article 337.

This principle was recognised by this court at its last term, in the Opelousas district. It was there expressly laid down, that according to article 339 of the Code, the prohibition against alienating the immoveables and slaves of a minor, 00 7 for a less sum than the appraised value mentioned in the inventory, does not extend to a case in which judgment is to be executed against him, or of a licitation made at the instance of a co-heir or other co-proprietor. See case of Towle’s Administratrix vs. Weeks et al. 7 La. Reports, 312.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be affirmed, with costs.