90 So. 760 | La. | 1922
This is a petitory action by the widow and heirs of Edwin C. McCrady, deceased, to recover certain real property situated in the parish of Caddo.
Defendants first urged the exception of no cause of action, which was overruled, and then answered, denying that plaintiffs had any interest in the property, and claiming title in themselves. In the alternative, defendants pleaded the prescription of 10 years acquirendi causa. Further in the alternative they averred that, if plaintiffs were decreed the owners of the property, then they were entitled to recover judgment for the amount of certain mortgage notes for which the property was sold at sheriff’s sale in 1892, for taxes paid since said date, and for improvements. The prayer was in accord with the averments of the answer.
Ardis & Co., Limited, intervened, claiming a mortgage upon the property by the present holders, joined defendants in resisting the demands of plaintiffs, and pleaded estoppel, based upon the contention that by allowing defendants to remain in possession and hare the use of said property for about 25 years, on the faith of which intervener had advanced its money upon the mortgage, plain
Plaintiffs denied tbe allegations of tbe petition of intervention, and defendants admitted tliem all.
Plaintiffs also pleaded tbe prescription of five years to tbe alternative demands of defendant.
Defendants, in turn, pleaded tbe prescription of five years in bar of tbe attack upon tbe deed by wbicb tbeir ancestor is alleged to bave acquired at sheriff's sale.
There was judgment for defendants rejecting plaintiff’s demands and dismissing the intervention as in case of nonsuit, and plaintiffs bave appealed.
Opinion.
The lower court decided tbe case upon its m'erits, and did not pass upon tbe pleas of prescription and estoppel.
We thmk tbe ruling on tbe exception of no cause of action was correct for tbe reason that plaintiffs allege tbeir ownership as widow in community and heirs of E. O. MeOrady, under titles to wbicb they refer, and charge that defendants are in possession without legal right.
It will, of course, only be necessary to pass upon plaintiffs’ pleas of prescription to defendants’ alternative demands in event tbe main issue of title is decided in plaintiffs’ favor.
Edwin 0. MeOrady was duly interdicted prior to 1892, .and bis wife, Mrs. A. G. Mc-Crady, one of the plaintiffs here, was appointed and qualified as bis curator. On June 14, 1892, W. W. Sebastian, defendants’ ancestor, from whom they claim by inheritance, brought suit, via ordinaria, upon certain notes, secured by mortgage upon tbe property now in contest, against the interdict in whose name it stood, and tbe said cura-tris signed an acceptance of service and waiver of citation at tbe foot of tbe petition, worded as follows:
“Service foregoing petition accepted and citation waived June, 1892.
“Mrs. A. G. MeOrady,
“Curate E. O. MeOrady.”
On tbe same day (June 14, 1892) the cura-trix filed an answer in tbe case reading:
“Now into court comes Mrs. Alice MeOrady, and for answer to the demands of petitioner denies all and singular the allegations of his said petition, and prays to be hence dismissed with all costs and for general relief in the premises.”
There was judgment in favor of Sebastian. Tbe property was seized, sold, and bought in by him.
Tbe court below held that tbe acceptance of service and waiver of citation was valid, and, in any event, that tbe answer filed by tbe curatrix put the case lawfully at issue, and the judgment was valid upon this ground, if not on tbe first.
Tbe relation of the curator to the interdict is analogous to that of tbe tutor to bis ward, as will be seen from the following articles of tbe Revised Civil Code, to wit:
“Art. 405. This appointment [of curator] is made according to the same forms as the appointment to the tutorship of minors. * * *
“Art. 415. The person interdicted is, in every respect, like the minor who is unde* a tutor, both as it respects his person and estate; and the rules respecting the tutorship of the minor, concerning the oath, the inventory and the se
Other articles not necessary to quote disclose that the relation of the curator to the interdict with respect to his powers, duties, and obligations are the same as that Of the tutor to his minor.
The Code further provides, with respect to tutors of minors, as follows:
“Art. 337. The tutor shall have the care of the person of the minor, and shall represent him in all civil acts.
“He shall administer his estate as a prudent administrator would do, and shall be responsible for all damages resulting from a bad administration.
“He cannot, either personally, or by means of a third person, purchase, lease or hire the property of the minor, or accept the assignment of any right or claim against his ward.”
“Art. 351. The tutor administers by himself alone; all instruments are made by him and in his name, without the concurrence of the minor.
“He can, on his own responsibility, act by an attorney in fact, in places distant from his residence.”
Articles of the Code of Practice pertinent to the present discussion are also as follows:
“Art. 115. Actions against interdicted persons or minors must be brought directly against the tutor of the minor or curator of the interdicted person.”
“Art. 177. The defendant, or his attorney, may waive the service of plaintiffs’ petition; provided the defendant, or his attorney, certify in writing, and under his signature, on the back of the original delivered to the clerk, that he acknowledges that the petition has been duly serv.ed on him. * * * ”
.“Art. 194. If the suit be brought against minors not emancipated, interdicted or absent persons, whose property is administered by a curator, then the petition and citation must be served either by delivery in person to the tutor or curator of such minors, interdicted or absent persons, or by leaving them at the usual place of domicile or residence of such tutor or curator.”
“Art. 206. Citation being the essential ground of all civil actions in ordinary proceeding, the neglect of that formality annuls radically all proceedings had, unless the defendant have voluntarily appeared to the suit and answered the demand.
“But citation is not necessary in executory proceeding, nor when the proceedings are in rem against the things as hereafter provided.”
Both Codes clearly indicate the similarity of powers and duties of tutors and curators, and that they represent and stand in the place of their wards, with certain well-defined limitations, such as the power to sell or mortgage their real property, and the compromising of their rights, which are required to be approved by a family meeting and the probate judge. But there is no provision of law which by reasonable implication denies to the tutor or curator the right to waive service and citation as is accorded to litigants generally by article 177 of the Code of Practice, above quoted. The other articles quoted show conclusively that the tutor or curator acts for his ward in his own name and without necessity for joining the ward. He is therefore the defendant in the sense of the article just mentioned.
In the case of Boudreaux v. Refining & Mfg. Co., 127 La. 112, 53 South. 461, we said:
“We can see no good reason why a tutor should not accept service of petition and waive citation, and thereby save unnecessary cost to his ward. Such matters form no part of the defense to the suit.”
See, also, Byrnes v. Byrnes, 115 La. 275, 38 South. 991.
In Logan v. Herbert, 30 La. Ann. 727, it was held that an administrator of a succession whose powers are also derived from appointment of the court might accept service and waive citation.
It would seem that, if a tutor, whose powers and duties are so nearly identical with those of a curator, and an administrator, may make such acceptance and waiver, a permanent curator regularly appointed to an
The ease of Jacobs v. K. C. S. Ry. Co., 134 La. 389, 64 South. 150, has no application to the question here, for the reason that it dealt with a curator ad hoc, whose limited powers, and the special purpose, a particular suit, for which he is appointed, cannot place him in the position of a regularly appointed and qualified curator.
For the reasons assigned, the judgment appealed from is affirmed at the cost of appellants.
