26 La. Ann. 440 | La. | 1874
The plaintiff alleges that her late husband, Zenon Labauve, was a judgment creditor of Mrs. Emily Woolfolk in large sums, as shown by three several judgments duly recorded and being judicial mortgage upon her property. As survivor in community and as usufructuary the plaintiff sets up her right to bring this action, the object of which is to defeat what she alleges to be a scheme concocted by and between Mrs. Woolfolk and her children, who are named in the
The defendants filed a peremptory exception to the plaintiff’s action, taking the ground:
First — That plaintiff is not party to any of the judgments which she prays to have annulled, and has no legal right to institute this action of nullity.
Second — 'That this court (the district court in which the action was brought), is without jurisdiction to annul a judgment of the parish court, or to rank or class the claim of the plaintiff in the distribution of the proceeds of the partition sale which may be made in that case.
Third — In bar of the plaintiff’s action the prescription of one year is pleaded, whether the action is to be regarded as revocatory or one to annul.
The defendants pray for a dissolution of the injunction and for damages. The exception was sustained. The plea of prescription was
From this judgment the plaintiff appeals. We think the judgment properly rendered. Nothing prevents, owners of property in common from exercising their right of partition, and we do not see how the proceedings complained of by the plaintiff can impair her right of mort“ gage on the property which the owners have taken measures to partition, as her judicial mortgage will follow the property or its proceeds.
It is therefore ordered that the judgment of the district court be affirmed with costs.
Kehearing refused.