25 La. Ann. 528 | La. | 1873
This suit is based upon a promissory note for :$2540 70, with eight per cent, interest from the fourteenth of December, 1863, secured by .a legal mortgage.
The deiense is, that the note was given in settlement of the claim of the plaintiff against defendant as tutor, when no account had been 'rendered by defendant to the court; that the note was given for slaves; ■that the mortgage .had -been extinguished by novation.
First — The provision of the Code, which requires a tutor to render an account ten days previous to entering into any agreements with his ward, is intended for the protection of the ward, and he alone can take advantage of its disregard. C. C., art. 355. So that even if the execution of the note sued on, given for the balance due by him as shown by his account rendered to the ward, could be considered as coming within the terms of the article of the Civil Code, still the tutor could ■not take advantage of his failure to comply with the law.
Second — It is alleged that the tutor purchased the slaves at the tutor’s sale of the minor’s property. He can not be listened to, in a court of justice, when urging his own dereliction of duty and violation of the laws of his country. Besides, the proces verbal shows that James Dickey was the purchaser of the slaves, and the settlement between the tutor and the ward shows that defendant acknowledged he had received the price of the property sold. Whether the price of the slaves was paid by Dickey or himself, is immaterial to the plaintiff. Under either hypothesis, the price of the slaves was not the consideration of the note sued on.
Third — No agreement to novate the debt, due by the tutor, has been proved. The execution of the note for the amount ascertained to be due by him did not change the character of the debt; it fixed the amount due and the period when it should be exigible, but did not extinguish the legal mortgage, which the law gave to secure the rights of the ward. Novation is never presumed. C. C. 2190.
It is therefore ordered and adjudged that the judgment of the court a qua be affirmed, with costs of appeal.
Behearing relused.