43 La. Ann. 38 | La. | 1891
The opinion of the court was delivered by
A rehearing was granted in this case at the close of the term of 1889, and it was remanded to be tried anew. James vs. Meyer, 42 An. 1100.
Additional evidence was presented in the lower court, and judgment was rendered for plaintiff, from which the defendant appeals.
I.
Record of case 8206 was filed in evidence. It discloses that the author of the title to plaintiff owned one-half of the property, and his minor children the other.
That he qualified as guardian of his children in Alabama, where he and they resided at the time, and have since continuously resided.
That in compliance with the orders of the Oivil District Courts, in which his authority as a guardian had been recognized, a family meeting of the relatives of the minors was held to deliberate upon the sale of the, only property in which they had an interest, to enable him to transfer the proceeds of the sale to their domicil.
A judgment of homologation was rendered, and the sale was ordered for a price and on terms stated in the deliberations.
The record further shows that the sale was tendered by the guardian to the plaintiff in this case.
He declined to accept a deed to the property.
Thereupon the guardian brought suit, to which the defendant,' plaintiff in this case, answered, alleging a number of grounds of defence.
The court, for reasons not predicated upon any of the grounds in the defendant’s answer, rendered a judgment, and held that the title tendered by the plaintiff in that case (Lewis personally and as guardian) was not such as the defendant James was bound to accept.-
This judgment was not treated by the court or the plaintiff as definitive. The demand of plaintiff was not absolutely rejected, but further proceedings were ordered, and until they were taken definitive decision upon the title was reserved.
The evidence shows that thereuponand in obedience to the<court’s judgment, the guardian, J. M. Lewis, presented a petition in the pending suit and asked for a family meeting.
On their recommendation a tutor was appointed, and an under tutor.
They qualified.
An inventory was taken and an appraisement had, and they were homologated.
Afterward, at the instance of the tutor, a family meeting was held, and recommended the sale of the property in so far as related to the minor’s interests.
The proees verbal was filed and homolgated.
The guardian then presented a supplemental petition, specifying what had been done, in compliance with the court’s order, and prayed that the defendant James be ordered to comply with the prayer of the petition originally filed.
On issue joined after trial, the defendant James was ordered to ■accept the title.
The judgment was signed with which the defendant afterward ■complied and paid the purchase price.
It is satisfactorily proven that the proceeds of the sale of the property, in notes and cash, were paid.
•III.
James, the purchaser (from Lewis personally and as guardian), who had been in possession since July, 1884, entered into an agreement with the defendant in this case, in July, 1888, to sell him the property.
The plaintiff, a few days after, tendered title to the defendant,, which the latter declined to accept. (Whereupon he brought suit to compel him to accept title.)
In his answer the defendant alleged at length that the succession, of Mrs. Lewis, mother of the minors, was opened in an ordinary suit; that a tutor was appointed here, and this irregularity invalidated the sale, and the minors were not represented in the proceedings.
The case was tried, and judgment rendered in favor of the plaintiff, and it was ordered that the defendant Meyer accept the deed-From this judgment an appeal was taken.
On appeal, on rehearing, this court remanded the case for trial anew.
It was tried, decision was again rendered for plaintiff, from which defendant appeals.
The first question presented on appeal relates to the allotment of' the case and irregularity affecting a judgment rendered by a decision-of the court, to which it has not been allotted.
The second relates to the representation of the minors in the-proceedings.
We will at once take up the second question, for if we should conclude that the minors were represented by their guardian in the proceedings before a tutor was illegally appointed, there will be very little else to decide.
The question of the representation of minors by tutors or guardians, residing with their wards out of the State has received the consideration of this court in a number of decisions.
Under the comity of States prior to the Act 145 of 1843, the appointment of tutors or guardians made at the place of the minor’s, domicil was recognized as valid and binding upon the courts of Louisiana. Delacroix vs. Boisblane, 4 M. 717.
In the matter of the partition of a succession, the court’s dictum, was, that a tutrix who had taken all "steps necessary to give her full authority in relation to the property of her pupils according to the laws of the place of their residence, can represent them here.. Berluehaux vs. Berluchaux, 7 L. 543.
After the adoption of Act of 1843, relating to guardians appointed within the limits of the United States, their authority to represent their wards was considered enlarged instead of restricted.
They are authorized to remove the property of the minors out of the State, upon proof that they have authority so to do by the laws of their domicil. Fisk vs. Fisk, 2 An. 77.
Lands situate in this State can not be sold by a foreign tutor or guardian unless he is authorized by the advice of a family meeting. ‘ ‘A foreign tutor has full power to administer the real property of his ward, situated in this State, by an attorney in fact. Bailey vs. Morrison, 4 An. 523.
With reference to the property of their wards foreign guardians may provoke, by and with the advice of a family meeting, and under the sanction of the court, the investment of the funds of their minors, or the sale of their property and the reinvestment of its proceeds. Succession of Lewis, 10 An. 791.
The subject was considered also in the case of Bowen, Guardian, vs. Callaway, Tutor, 26 An. 648.
Authorized by Article 363, C. C.; the guardians appointed by the courts of the domicil, out of the State, are the representatives of their wards, and upon them devolves the duty of controlling their property in this State. Succession of Foley, 34 An. 130.
The decisions uniformly maintain the authority of foreign guardians when duly appointed to represent their wards at the domicil.-
The foreign guardian’s authority were similar in most respects to that of the tutor under our laws. James vs. Meyer, 41 An. 1100.
IV.
The plaintiff, as guardian of his children, presented a petition to the probate court of Talladega county, Ala,, in which he alleged that his children were part owners of a piece of property in Louisiana; he asked for authority to have it sold. He gave bond as required by the court of his domicil to protect the minor’s interest in the proceeds of the sale of the property.
After the family meeting was held in this State, and its deliberations homologated, he instituted suit against James.
On the trial, the District Court did not find the title valid, and thinking that the minors would be more authoritatively represented by the appointment of a local tutor, ordered the appointment of a resident of this State (in which the minors did not reside) to represent them, and die} that which the court said could not be done in the succession of Poley, 34 An. 130.
The subsequent proceedings were required by the court.
Prior to these last proceedings plaintiff might have insisted on a judgment.
They may now be considered cumulative.
They do not have the effect of setting aside the proceedings preceding them.
The last judgment wes preceded by a supplemental petition, in which all the proceedings were pleaded, as well those preceding the appointment of a tutor as those succeeding.
The fact that the minors were represented by their guardian, as well as by a tutor, was urged.
With all these proceedings offered, the court decided contradictorily both with the guardian and the tutor that the purchaser must accept the title.
This was the judgment in the case which was remanded. 41 An. lioo:
On the trial, after it had been remanded, the court heard further evidence and decided that the title is legal.' This is the judgment before us on appeal.
V.
The other ground of nullity alleged, the illegal allotment, does not affect the validity of the proceedings in the name of the guar- ' dian, as they date at a time prior to the alleged illegality.
The question of the illegal allotment of the case to be tried arises subsequently, in proceedings appointing the tutor.
If it has and be still urged, the objection is met by reference to the case of Buisson vs. Lyons, 33 An. 1424; Purvis vs. Riley, 39 An. 305, and State ex rel. Mexican L. vs. Voorhies, ex rel., 41 An. 567, in which it was held that the irregularity in allotment must be timely pleaded.
If the allotment was irregular it can not now divest the jurisdiction or strike the anterior or subsequent proceedings with absolute nullity.
The proceeds of the sale have been received by the guardian, who had authority to receive and grant a discharge. A fact not proven, and which was not made evident by the record in the previous appeal, but which is now undisputed.
It now brings the case clearly within the grasp of the case of Succession of Hawkins, 35 An. 591, in which it was held “ the proceeding, being substantially correct and the proceeds having been paid to the legal representative, the minor was concluded.”
The irregularities heretofore found being cured, we affirm the judgment of the District Court at appellant’s costs.
