Morton v. Packwood

3 La. Ann. 167 | La. | 1848

The judgment of the oourtwas pronounced by

Eustis, C. J.

The plaintiffs sue as the heirs of the late Alice Packwood, wife of the defendant, who died in the city of New York, in 1840, claiming to be recognized as the owners of seven-tenths of an undivided moiety of a plantation situated in the parish of Plaquemines, with the slaves thereto belonging; they pray for a partition of the same, and for an account of the revenues and profits received by the defendant, since the 27th of July, 1840. There was an exception of res judicata on the part of the defendant, which was overruled as to one of the plaintiffs, but sustained as to the rest, who have appealed. The defendant on the appeal, insists on the affirmance of the judgment.

The final decree which is pleaded in bar of .the plaintiffs’ suit was rendered by the Supreme Court, in Dec. 1845, on an appeal from the Court of Probates of New Orleans, in the case entitled the Succession of Packwood, Samuel Pack-wood, Executor, appellant, which is reported in 12 Rob. 335. The defendant was the testamentary executor of his deceased wife, and filed his account of executorship in the Court of Probates of .New Orleans, under whose authority he acted, and prayed that the same might be homologated. Two of the heirs opposed the homologation on the ground that the executor had not accounted for the undivided half of the .plantation and slaves, which is the subject of the present suit. They charge that a simulated sale had been made of it to David Stewart, that it was afterwards retroceded to the defendant, and that the retro-cession inured to their benefit; .but that if it did not, the defendant, as executor, would still be bound to account to them for the price, to wit, the sum of $100,000; they allege also other grounds of opposition to the account; they pray that the executor may.be ordered to account for the revenue and crops of 1840, 1841, 1842, 1843, which exceeded $20,000 each year, and that the executor be ,ordered to credit the succession, and charge himself, with all the sums enumerated and set forth in the opposition, and to account .for the property and assets described therein, and be condemned to pay twenty per cent damages on all sums received by him and not deposited in bank according to law.

The opposition was tried, and evidence received,pro et cow., in relation to the sale from the defendant to Steivart, and the .transfer¡by the .latter to the .former of the half of the plantation and slaves, and the Court of Probates decided that the sale was simulated, and that the plantation and slaves was the common property of his deceased wife and the defendant, and that the same must be accounted for by the executor, as community property; that the proceeds of the crops of 1840, 1841, and 1842, to wit, $54,320 84, be placed to the credit of the account as assets of the community, and that of 1843 be also accounted for as community property. The decree rejected certain items charged in the account, and established certain shares-of bank stock as also belonging to the community. On the appeal, the judgment of the Court of Probates was reversed, the opposition, so far as related to the bank stock, was sustained ; but, in all other respects, was overruled and rejected, and the account rendered by the executor thus amended, was approved and homologated.

The authority .of the thing adjudged, takes place only with respect to what was the object of the judgment. The thing demanded must be the same, the demand must be founded on the same cause of action, the demand must be between the same parties, and formed by them against each other in the same quality. Civil Code, 2265. In reference to the two suits before us, the counsel for the plaintiffs contends that two of those requisites did not concur, that ;he parties did not form their demands in the same quality, and that the thing lemanded is not the same in both suits. In the present suit the defendant is sued personally as joint owner with the plaintiffs, and it is true that the thing lemanded is a partition of the property alleged to be owned jointly, and an aq;ount of the revenues received by him since the death of his wife; but there s a question which stands before that of partition, and that is that of ownership, md the plaintiffs have expressly asked for the court to decree that the said Hamuel Packwood, render an account of the revenues which he has received rom said property since the 27th of July, 1840, and that they be recognized as intitled to seven-tenths of the undivided moiety of said plantation, slaves, &c., and of the revenues proceeding therefrom. Without establishing the fact of joint ownership, it is obvious, under the allegations of the petition, that no step would be taken by a court towards effecting a partition, and the real issue of ownership cannot be considered as subordinate to the demand in partition, nor •can it be so rendered by any form of action in which the claims of the plaintiffs may be presented. We consider that the basis of the present suit is the establishment of the joint ownership of the plaintiffs of .their share of a moiety •of the plantation and slaves and the revenues thereof, without which there could be no judgment rendered in their favor. The simulation of the sale •from Packwood to Stewart, is charged as in the opposition to the executor’s account, and the cause of action appears identical with the grounds taken •therein, so for as relates to the plantation and slaves.

It is contended that the thing demanded was an account from the executor, and the thing adjudged was the accountability of the executor, and nothing more; and, though it is conceded that the question to the title to the property •in controversy arose in the trial of the opposition, that it was ¡not the real point in controversy. Our impression is otherwise ; and whether we consider the evidence adduced, the arguments of the learned counsel engaged in the cause, •or the opinions of the court of the first instance or of the last resort, the rights of the plaintiffs as affected by the sale to Stewart were fully examined and adjudicated upon, and the form of the final decree was the consequence of the form in which the plaintiffs thought proper to present their pl.ai.ips. It negatived the obligation of the executor to account far the one-half of the plantation and slaves and their revenues, as well as for the price, and repelled the allegations concerning the character of the side to ,Stewart, of which it recognized the validity.

It is correctly stated that the proceedings in the Court of Probates ¡a tin •former suit were against Samxiel PacJewood, the defendant, as executor of fhf last wil.l of his deceased wife, that his account was filed as executor, and that ,the opposition was framed to it as the ac.cpunt of the executor, and that wjtl reference to it, as such, the decree of the Supreme Court was rendered. It-ii contended that this defe.ats one of the requisites necessary to establish res judicata viz: that the demand between the parties mus.t be in the same quality. Thii objection it wi]l be necessary to consider in reference to the mode of propepd jng in the settlement of successions, which had its origin in the Spanish law, am which is still continued under the provisions of our Codes.

The law giving a preference in the administration of successions to thos who have .an interest in them, it generally happens that the administrator, b he an heir or a creditor, has an ipfere.st adverse to those which he represent! His individual interest is litigated in the account or tableau which he present! in whi.ch his claim as heir or as creditor is exhibited ; and, if a party having a| adverse interest make .an issue on the claim thus exhibited, and that issue b tried, we have never heard it questioned that both parties were bound by th judgment rendered. Most successions have been settled in this mode, a.n there is generally no other written evidence of their adjustment than the accour rendered by the administrator or .executor, which becomes a judgment b| being homologated after due proceedings had. On oppositions to the accopn rendered, matters which are necessary to the liquidation of the successions-the debts of heirs to the successions, the amounts to be collated as well thoi of the administrator as of other parties, are generally litigated and closed byl final judgment. In such cases it is obvious that the person representing the succession is personally a party in relation to his individual claim, which he presents for judgment. Every party in interest is a party plaintiff and defendant' — -a plaintiff for what he claims, and a defendant for what he opposes. The mass, or succession, in the contest is passive and represented in law, but the real parties are the litigants. In this case, on the opposition, the present plaintiffs were the actors, and represented their interest in the succession of the deceased, and, so far as related to what they demanded from the defendant, were the plaintiffs calling upon him to restore to the succession what belonged to it; it was the suit of the succession against him, and he was the defendant. On the contrary, in his claim for commissions paid for the collection of rents, which was an item of the account, he was the plaintiff and the heirs made themselves defendants to it, and represented the succession. The defendant was in court as executor, and maintainedhis individual interests as presented and adjudged of record in his personal quality. The course pursued by the ounsel who were charged with the important trust of settling the respective i-ights of their clients, is that which has been adopted, we may say almost universally, and has been settled long since by our jurisprudence. We do not consider that it is at all material that the appearance and acts of the defendant were in his capacity of executor. His personal rights were asserted and determined upon. Had he been adjudged to account for the plantiffs’ interest in the plantation and slaves, to restore it to the community, with its revenues, the judgment would have bound him, and could have been enforced against him. Being once a party to the record, it would have been a vain form to have required him to appear personally against himself. Rather than to require such a thing the law authorizes him to assert at will his personal rights in his representative capacity. We apprehend that such is the usage observed in the settlement of successions, under the direction of courts of Chancery. When an executor is called upon to account, and he is a creditor, or an heir, or has claims on property in his charge, and asserts those claims, and, on adjudication, they are maintained after litigation in relation to them by competent parties, we are not aware that the judgment rendered can afterwards be drawn in question on the ground of the representative capacity in which the party asserted his rights. On this point we have not been furnished with any authority from that system of jurisprudence, with which ope of the learned counsel who argued this cause is so familiar.

Nor is the fact to be overlooked that the learned counsel who have been engaged at different times in the litigation of this succession, which has called forth so much learning, research, and ability, have themselves adopted of their own choice this mode of fixing responsibility on the defendant; and, in accordance with the uniform practice which we have stated, the same parties, on a mere statement of debts for which an application was made by the executor to sell property, litigated in the Court of Probates, and on the appeal, the right of the community to the sum of $14,747 — the judgment was against the plan-tin', that the executor should sell unless the heirs should make provision for the debts. The finality of this judgment the plaintiffs’ have not impugned ; on the contrary, an acquiesence in it may be inferred from the consent decree which was rendered on a rehearing. Succession of Packwood, 9 Rob. 446. We had occasion to examine tho practice on this subject in one of the first cases that .camp before us, and our views w.ere thep in accordance with those which a further consideration has satisfied us to be correct. Succession of Dumford, 1 Annual Rep. ¡9g,

No question having been made as to the jurisdiction of the court, we think there is no difference in principle between a litigation in this form and a judgment for .a sum of money, and the title to, or interest, in real property, where the parties sele.et this mode of determining it.

We think the causa petendi — the ownership of the plantation and slaves, and the consequent claim to its fruits and reyenues, were the real point of controversy in the original litigation, and that Samnel Packwood was personally a party to it in .the eye of .the law, although in the court of the first instance his personal rights were asserted in his representative .capacity.

As the cause before us has been argued with great care, and as every thing which affects the authority of res judicata is of the greatest moment, we have thus given our views in relation to the several points as they have been presented in argument. But there is one fact which removes the apparent difficulty as to Packwood's being a party in a representative capacity only,in the original suit, and that is, that the appeal was made and taken by him in his personal capacity, in the name of Samuel Packwood. The appeal bond is in his name, .and given personally with his sureties, in the sum of $150,000, conditioned that Samuel Packwood shall prosecute his appeal and shall satisfy whatever judgment shall, be rendered against him, &c.

In relation to the authority of res judicata under our jurisprudence there can hardly be any material difference of opinion. It is in the application of the rules that .controversies arise, and it'must never be lost sight of that, whatever may be the hardship of any particular case, the principle itself must be maintained in its integrity as one of the great conservative elements upon which society reposes for its security and welfare.

Judgment affirmed,