Le Bleu v. North American Land & Timber Co.

46 La. Ann. 1465 | La. | 1894

Lead Opinion

The opinion of the court was delivered by

Nicholls, O. J.

The first question before us is the action of the court in overruling defendant’s objection to the want of proper parties. If the allegations of plaintiffs be true, that the property in question belonged to the community, which was free from debt, and that after the death of the wife the father sold the entire property as his own by private acts, absolutely ignoring any interest therein of his children, each one of these children had the right separately and apart from the others to bring an action for the recovery of the undivided portion of the property belonging to him which had been attempted illegally to be conveyed. These parties might have all joined in one action, but they were under no legal obligation so to do. The act of the father was absolutely null and needed no setting aside. The judicial proceedings in reference to granting a special mortgage on the father’s property had no bearing upon the question of the ownership of this particular property, as [we will hereafter show. The exception was correctly overruled.

The position next contended for in this court by the defendant is that Ophelia Oorbelle (Mrs. John Guillory) having consented to the homologation of the account of tutorship rendered by her father, and received from him the amount going to her as shown thereby giving him the receipt she did, is estopped, as is her vendee, from bringing the present action. The property in question was not placed in the inventory nor in any manner dealt with in the account. The father acted with respect to it as his separate property dehors the succession and the community. If Mrs. Guillory had an absolute vested right of ownership in the property at her mother’s death, that interest was not divested by the fact that in the enumeration of the assets of the community this particular asset was accidentally and erroneously or intentionally left out. The account and its homologation extended only to the property and moneys therein covered. The receipt itself shows on its face that it had reference to those and nothing more. The acknowledgment of Mrs. Guillory that all her rights under the special mortgage had been satisfied and extinguished, and her consent that the inscription of the mortgage in the records so far as she was concerned should be erased, could have been executed and the mortgage erased and extinguished without in the slightest degree, as matters stand, affecting his rights in the property. The evident theory of the defence is that because a mortgage has been given by a tutor to secure the fidelity of his trust to those in whose favor it is given, the minors are necessarily driven to an action upon the mortgage to secure their rights in respect to property of theirs with which he has illegally dealt while tutor. That although property belonging to the minors which has been illegally and unwarrantably sold by him for his own benefit still exists in kind, the parties holding the property so illegally disposed' of can successfully resist the bringing of a petitory action by the owners for the recovery thereof. This contention is totally inadmissible. The law prohibits the sale of the immovable property belonging to minors unless for special reasons and under special conditions and formalities. Civil Code, Art. 389. It contemplates that generally the tutor should preserve that property in kind, and turn it over to the minor when he shall have arrived at his majority.

Neither tutors nor administrators are permitted as a right to charge themselves with the value of property belonging to minors or to successions, and by so doing shift the ownership of the same from the minors and the succession to themselves. To permit them to do so would be to recognize as a legal proposition that a party has the right to violate his legal obligations and legal duty to others, and leave them no redress save practically an action in damages.

In New Orleans vs. the Wardens of the Church of St. Louis, 11 An. 245, this court said, speaking of a somewhat similar pretension: “ This is a doctrine as unsound as it is novel. The violation of a contract may be, and very often is, the ground of an action sounding in damages against the party who has violated the contract, but the claim in such a case is for the reparation of a wrong, and is the very opposite of a recognition of a right to violate the contract.” The recourse which minors have upon the property of their tutors, through the legal mortgage which the law has created in their favor, is a remedy in their favor to be enforced by them for the protection of their rights, and not an instrumentality by which those rights could be overridden and broken down by the tutor.

So far from minors being forced (by reason of the illegal sale of their property by their tutor) to a personal action against him and to an action of mortgage on his property, when the property alienated still exists in kind, it would often, on the contrary, be properly their duty, in the interest of third parties as well as their own, to proceed to the recovery of the property disposed of. In the case at bar the tutor did not go even so far as to charge himself with the value of the land. He sold it without authority, and seems to have repudiated the idea of all liability in the premises. The special mortgage given by the father, under the circumstances of this case, has no bearing upon the issues involved therein. The right of ownership of the plaintiff in the land in litigation is separate and distinct from any indebtedness or liability by the tutor to his minor children. The exception based on a contrary idea was correctly overruled.

---

Opinion on the Merits

On the Merits.

The right of the plaintiffs to recover the joint interest claimed by them in the land described in their petition is unquestionable if they have supported their allegations by proof properly admitted by the court. Defendant denies that such proof has been made.

We think the certified copy of the patent issued by the State to Amédé Oorbelle was properly admitted for the purpose of showing the date of the acquisition of the property by him. This, the plaintiffs inform us, was the purpose of the document. Defendant admits having purchased the property in question from Amédé Oorbelle, and having it still in its possession. By the testimony of its own witness and former manager it has shown that the land was held by their vendor, under a patent which was exhibited to the manager at the time of the first sale, and placed in his possession when the third sale was closed. Both parties claim under the title acquired by Amédé Oorbelle. The plaintiffs do not deny that Oorbelle purchased this property in its entirety, nor do they deny that he could have legally sold in its entirety had not circumstances arising subsequently to its acquisition intervened and changed the legal situation. They simply maintain that after the title had been vested in Oorbelle, the title and ownership of the property had become, so to speak, split into two by the death of his wife — one undivided half remaining in the father,[the other vesting in the heirs of the wife, and that of their portion of this half they have not been divested. It is immaterial to both parties whether Oorbelle bought from the State or from any other person.j^There is nothing set up by either plaintiffs or defendant seeking to give to a title acquired from the State a character special or different from one from any other source. All parties rely upon the fact and validity of the title itself.

The issue is not as to the title conveyed to Corbelle, but as to the certain collateral facts which bear upon that title — first the date of the purchase, and next the date of the wife’s death, and the illegal divestiture of the plaintiffs’ rights.

The third section of Act No. 75 of 1880 makes it “ the duty of the Registrar of the Land Office to keep account of the sales of lands which have been donated to the State, in well-bound books, with the number of the certificate issued therefor, setting forth the section, parts of section, township and range, district and parish, to whom and when sold, and for what price * * * which books shall be preserved as official records.”

The law does not fix the form of the entries or of the record here required to be made, but simply declares the facts which must be placed of record. If the registrar places of record the entire patents which have issued, the record is just as legal as if mere memoranda or short notes had been taken and preserved of the data Which the law requires to have perpetuated. The record being official, the registrar was authorized to give a certified copy from it, which was legally admissible for the purpose it was introduced.

The objections raised by appellant to the testimony offered to prove up the act of sale sous seing privé from Mrs. Guillory to Zepherin LeBleu were correctly overruled. Mrs. Guillory is not a party to this suit, and the defendant does not hold under her. Plaintiffs do not sue either the defendant or Mrs. Guillory upon the instrument — quoad defendant the present ownership of the interest' which was inherited by Mrs. Guillory is only incidentally raised, and the parol testimony of a person who saw the parties and the attesting witnesses sign their names was properly received. Green-leaf, Yol. 1, par. 573b.

Defendant, after objecting to this testimony, went very far itself on cross-examination in the direction of proving up the fact which the document evidenced and the document itself.

Defendant claims that this paper does not purport to on its face convey any portion of the interest which Mrs. Guillory inherited from her deceased brother and sister. There was no necessity for her to state in the act the source or origin of her title; it was sufficient that she owned an interest in the property to the extent conveyed. How she owned it would be a matter of evidence should occasion require proof on that subject. That proof has been made in this case. The remarks.just made apply equally to plaintiff’s pleadings as to this interest. There was no necessity for plaintiff’to set out how the, interest conveyed to Zepherin LeBlue by Mrs. Guillory arose any more specifically than was done in the petition.

Defendant, in its objections to the admissibility of the certified copy mentioned of the patent, urged that the copy was inadmissible until the identity of the Amédé Oorbelle therein named with the Amédé Oorbelle under whom plaintiff’s claim was established. The objection went to the effect of the instrument, not to its admissibility. On the question itself of identity we have not the slightest doubt. The presumption arising from identity of name is fortified by all the facts in the case.

Defendant reserved a bill to the ruling of the District Court refusing to admit the testimony offered by it to prove the value of the improvements which it alleges it placed on the property while in exclusive. possession of the same and remitting the consideration of that question to future actions.

The effect of the judgment rendered by us is to recognize the defendant as a joint owner of the property with the plaintiffs. The defendant occupying that position sues the plaintiffs in reconvention directly for the improvements. The District Court held correctly that whatever claim defendant may have against plaintiffs as arising from the improvements should be urged in another form of action.

Defendant complains of the judgment as between itself and its warrantor to the extent that it did not in terms reserve it a right of direct personal action in warranty against the latter. We think that this reservation x’esulted as the necessax’y consequence of the pleadings and the rulings of the court in respect to the warrantor. The District Court (rightly or wrongly) upon the exception of the curator ad hoc dismissed as issues in the case and from the consideration of the court all moneyed demands against the warrantor on the ground that he was an absentee and could be brought into court only for the adjudication of the question of title. He was held in court exclusively for that purpose, and therefore all personal claims between defendant and the warrantor remained open for future action. There can be no objection, however, to making the judgment so declare in express terms. We are of opinion that the judgment appealed from was sustained by the law and the evidence.

Eor the reasons herein assigned it is hereby ordered, adjudged and decreed that the judgment appealed from be and the same is hereby affirmed with costs in both courts — the right of the defendant, the North American Land and Timber Company, to proceed by direct action in warranty against its vendor, Amédé Oorbelle, being hereby expressly reserved.