2 Mart. (N.S.) 225 | La. | 1824
delivered the opinion of the court. The petitioners state, that in the year 1810, their testator instituted a suit against Madame Riviere, executrix of the late J. B. Riviere, in order to recover of her, the balance due for the building of a certain house, situated at the corners of Bienville and Levee streets, and that an action was commenced by the said Madame Riviere, against the said Lafon, for damages: which suits were consolidated, and a final judgment rendered thereon, on the 14th of April, 1823, for the sum of $3389 78-100-that the house, the building of which, occasioned these actions, is now in the possession, and is the property of the defendants, and being subject to the original privilege granted by law, to the builder, must be
The answer, and exception, set up the following defence, to the demand :
1. That the authority of the plaintiffs has long since expired, and the suit should have been instituted in the name of the heirs.
2. The facts set forth, in the petition, are untrue.
3. From the records of the suits, to which the plaintiffs allude in their petition, it appears it was for the building of two houses, that Lafon contracted with Riviere, and not of one, and that recovery cannot be had, against the defendants, for the sum due for building a house that is now owned by another and third party.
4. Many years after the building of the houses already alluded to, Riviere became insolvent, and surrendered his property to his creditors: syndics were appointed according to law, and the property now claimed, was sold by them, and the proceeds arising from said sale, regularly paid over to the persons duly entitled to receive them, under a decree of the court. The widow of Riviere, his ex
5. The defendants were not parties to the judgment, and are not bound by it.
6. One thousand dollars more than the sum actually due the testator of the plaintiffs, was received from the negligence of the defendant, in the original suit, in not proving the handwriting of Lafon, to a receipt for that sum-and,
7. In the judgment referred to in the petition, costs are included, for which no lien exists on the building owned by them.
A supplemental answer was subsequently put in, which contained,
1. An allegation that the claim of the petiioners, was not a privileged one-and
2. If so, it was barred prescription.
We have formed an opinion on one of these exceptions, which is the fourth in the order just stated, which renders it unnecessary to examine the rest. It was that on which the judge decided the cause in the court below,
This brings us to the principal question in the cause--the effect of the sale by the court of probates. It is contended by the defendants, that this sale freed the property from the mortgages existing on it, and that the creditor should have pursued his lien on the proceeds, in the hands of the executrix.
On reference to the provisions of our code, which point out the step to be pursued by executors, who are ordered by the will, to sell the property of the deceased, and pay his debts, we find that they are directed to proceed in the manner prescribed to the curators of vacant successions. It therefore follows, that if a sale by them, under the authority of the court of probates, would have the effect contended for in this case, the same consequence will ensue, as that made by an executor. Civil Code, 246, art. 174.
We had occasion to enter very fully into the subject of the jurisdiction of the court of probates, in the case of Vignaud vs. Tonnacourt, which will be found reported in 12 Martin,
But there is a particular provision of the code, which we have already attended to, that we think places the correctness of the opinion we entertain, beyond doubt. We allude to the 137th art.page 178. It is there declared, that the curators of vacant estates, and absent heirs, shall not proceed to the payment of the debts, until they have previously obtained the authentication of the parish judge, by whom they have been appointed-that, That authentication shall be necessary, even in case there be money enough to discharge all claims on the estate; but should there not be sufficient properly to satisfy all demands, it shall be their duty to cause the parish judge to regulate the classes of privileges and mortgages, and then to establish the rank in which the creditors shall receive their payment.
From the language here used, it results, that the privilege and mortgage creditors, may demand payment out of the proceeds of the sale, in the hands of the curator, and in preference to simple creditors. This preference could have been given, on no other ground, than that they would have had the same right
We forbear to pursue the subject through the variety of illustrations of which it is susceptible, and we conclude that independent of the result, which a consideration of our whole judicial system, in relation to successions leads to, the right given to mortgage and privilege creditors to be paid out of the proceeds of the sale of the property mortgaged, is totally inconsistent with allowing them to retain a mortgage in the thing sold.
The plaintiffs, however, contends that, admitting the general principle to be as just pronounced, yet, here the sale was irregular, as not being made after the usual advertisements, &c. On this point, we are of opinion that, if the irregularities did exist, the proper time and place to have objected to them was, in the court of probates, when the executrix applied for an homologation of her administration of the estate. The law requires the creditors to present their claims and enforce them before that tribunal. It makes them parties to the proceedings, by a public notice directed to be published in both languages, calling on them to make opposition, if they have any to make, and
In opposition to the effect, which we think the proceedings in the probate court must necessarily have, we are reminded of a decree pronounced by this court in the case of Lafon vs. Riviere, when judgment was given against the principal debtor. But we do not see how the opinion then expressed at all affects the case. The decision of the court then was, that the defendant was too late in presenting.his dilatory exception. Here the third possessors seek to protect themselves by shewing that from the nature of the proceedings, in the court of probates, the property was acquired free from any lien, and that the plaintiff was by law a party to the proceedings. If such was the fact, and we have seen that it was, then no subsequent consent of the executrix and the creditor to litigate the points in dispute between then coulddeprive the purchaser from holding the property on the condition he acquired it.
It is therefore ordered, adjudged and decreed that the judgmedt of the district court be affirmed with costs.