2 La. Ann. 466 | La. | 1847
The judgment of the court was pronounced by
This is a suit to recover a tract of land in the parish of Concordia, formerly belonging to Joseph Harrison, deceased. The suit is brought ■by his heirs, and those of his first and second wives. By the first he had children ; by his second wife he had no issue. The answer sets up title in the defendant’s testator, under a sale made by the Court of Probates, on the 3d of February, 1834.
It appears that a curator of the absent heirs of the succession of Joseph Harrison was appointed by the Court of Probates of Concordia, and that, in a suit ■for a partition brought by an heir present against the curator, a decree was rendered ordering the land in question to be sold, which was accordingly done, and the defendant’s testator became the purchaser for $12,000, which was paid •to the curator.
I. The plaintiffs claim the land as their property, without reference to any judicial proceedings; and it has been argued at bar, that the decree under which the defendant claims is a nullity, and must be treated as such. It is urgod as grounds of nullity that there were not proper parties to the decree ; that the heirs were not parties to it; and that neither their names nor number appear in the record, which is necessary in an action for a partition, inasmuch as no share can be ascertained without the number of the participants be established.
It certainly was the duty of the curator in this case to effect a partition. 'The Code makes it imperative on curators of absent heirs, when one of the heirs is present, to sue for it (article 1129); and makes the curators competent parties, in a suit for a partition, to represent in every respect the absent heirs .(art. 1238). It cannot therefore be said that proper and competent parties were not made in this suit.
The purchaser in this case was not bound to look beyond the decree. The jurisdiction of the court was undoubted, and the jurisprudence of this State has long since been settled, that a bond, fide purchase at a judicial sale is protected by the decree. Lallane’s Heirs v. Moreau, 13 La. 432. Brosnabeau v. Tur
II. It is urged in argument that the curator only represented the absent heirs of Joseph JIarrison, and not the heirs of his pre-deceased wives, and that the decree only related to the sale of the land of his absent heirs, and not theirs. The first wife died in 1807: the second in 1.816 or 1817; and Harrison himself died in 1823. Both the successions were vacant. The defendant’s possession is under a just title, and has continued without interruption for more than ten years. Prescription runs against a vacant estate, though no curator has been appointed to it. C, C. art. 3491. We have examined, with much attention, the learned opinion delivered by the late Supreme Court, in the ease of Calvit et al. v. Mulhollan et al., 12 Rob. 261, without having been able to concur in .all Its conclusions.
We find that the vacant succession, the Jiereditas jacens of the roman law, forms an important constituent portion of the legislation concerning the administration of successions in the Code of 1825.
The fact that all prescriptions, which are incomplete on the death of the deceased, continue to run against his vacant succession, necessarily pre-supposes that, until it is accepted by the heir, it represents the person of the .deceased. Article 940 of the Code, by providing that the right of the heir is in suspense until he decides whether he accepts or rejects it, modifies and limits, in accordance with that principle, the rule that the succession is acquired by the heir from the moment of the death of the deceased, by the operation of law.
It is the interest of the State that real property should have a visible and responsible owner. When heirs choose to relieve themselves from the charges of ownership and the payment of the debts of the succession, and await in security the improvement of property falling to them through the enterprise and labor of others, the law has wisely held that they should not be permitted to use their rights to the manifest injury of others. It has provided consequently for the appointment of curators to vacant successions, that prescription shall not be interrupted against them, and that when the heirs accept the succession, it shall be taken only on the condition of not prejudicing the rights which may have been acquired by third persons upon the property of the succession, either by prescription or by lawful acts done with the curator. Civil Code, art. 1024, Davis’s Heirs v. Elkins, 9 La. 147. Poullney’s Heirs v. Cecil, 8 La. 342.
We consider that, for the purposes of prescription, successions now represent, as they did under the Code of 1808 and under the toman law, the person of the deceased, as long as the heirs leave their rights ip abeyance, and avoid the responsibility and charges of asserting them.
Such'being our conclusions, it is unnecessary to examine the other questions which have been raised in argument. We are of opinion that the claims of the plaintiffs, as heirs of the deceased wives of the lato Joseph Harrison, are prescribed by lapso of time. Judgment affirmed,
