Morris v. Kemp

14 La. 251 | La. | 1840

Bullard, J.,

delivered the opinion of the court.

This is a proceeding under the act of 1834, “for th.e further assurance of titles at judicial sales.” The appellee procured from the Court of Probates a monition, calling upon all persons who might have any right, title or claim, of any nature and description whatever, &c., &c., to show cause why the sale and adjudication to him of a certain tract of land, belonging to the estate of Stephenson, made under the authority of said court, should not be affirmed and homologated.

The tutor of the minor heir of Stephenson came forward and made opposition to the homologation of the sale, on the following grounds:

1st. Because the order of the Court of Probates, in pursuance of which the sale was made, was unauthorized by law, not having been applied for, nor provoked by any person having a right to do so, either as administrator of the succession of Stephenson, or by the tutor or co-tutor of the minor heir.

2d. Because, even supposing the order was legally given, yet the property did not sell for its appraised value.

3d. Because the terms upon which the-land was sold have not been complied with.

The administrator of the estate intervened, but it is not important to notice the recusation of the judge, contained in his opposition. '

Upon looking into the proceedings which led to th,e alienation of the land in question, we find a petition of Margaret M. Morris, late w.idow Stephenson, to the Court of Probates, . i-i „ , , representing that, since she was confirmed as natural tutrix of her minor child, and administratrix of the estate of her late husband, she had contracted a second marriage with A. R. . , ° Morns, without calling a family meeting to decide upon their retaining the tutorship. She, therefore, prays that a family meeting may be convened to deliberate on the propriety 0f retaining her in the tutorship, and also to deliberate on other matters relating to the administration of said estate. A family meeting was convened accordingly, and proceeded to advise that the property belonging to the estate should be sold. The advice of the family meeting was homologated, and the property was sold without regard to the appraisement.

A family meet-for'spee°ific°and different purposes, is-without authority to or-perty'lnheinted whose interests they are called on to protect.

Nothing shows, in our opinion, the necessity of the sale in question. The family meeting was convoked, for a different pU1-pose altogether, and had no authority to direct a sale; r r ° ? nor does the record show that this was a case in which the property, belonging to minor heirs, could be sold without regai'd to an appraisement. We conclude, therefore, that the judge erred in overruling the opposition,

The judgment of the court of probates is, therefore, reversed, and, proceeding to give such judgment as should have been rendered below, it is further ordered and adjudged, that the sale of the land in question be rescinded and annulled, and that the appellee pay the costs of both courts.