49 La. Ann. 190 | La. | 1896
The opinion of the court was delivered by
Plaintiffs’ claims are that upon the death of Mrs. Ogden, in 1856, the ownership of one-half of the community property devolved eo instanti upon her heirs, subject to the payment of the community debts, and subject to the right of Judge Ogden to the usufruct during his life. That Judge Ogden and his children were therefore eo-proprietors when the attempt to foreclose the Tuyes
Counsel in discussing his ease has overlooked the fact that the property rights of these parties, when presented to the court to be tested simply and exclusively by the direct and immediate legal results of an assumed absolute null adjudication to Hepp, followed by a sale by Hepp to Ogden, and by Ogden to the Leland University, free from any question of prescription, would be something essentially different from their presentation with the element of prescription thrown into the investigation. It might well be granted, if the adjudication to Hepp was an absolute nullity, that a sale made by him to Ogden and by the latter to the Leland University would fall
The argument advanced by plaintiffs that they were without legal right to institute a petitory action for any specific property of the community nDtil a liquidation of the community is inconsistent with their present attitude before the court. They assert that the community is even now unsettled, and yet they are before us as plaintiffs in petitory action. They had the same rights in 1870 in this respect as they have now.
But we are not now dealing with the question whether defendant could have successfully set up as an exception, that the heirs of the wife could not bring this action for a specific piece of community property until the community was liquidated. Defendant makes no such point. What it contends is that there was no legal obstacle in the way of plaintiffs placing themselves in position to have brought such an action by a forced liquidation of the community, immediately after the mother’s death, had such a liquidation been a necessary legal condition precedent to the institution of such a suit; that the way to an action being open to them, they could not by voluntary inaction, indefinitely postpone the running of prescription in defendant’s favor. (Day vs. Collins, 5 An. 589.) The legal proposition which plaintiffs contend for, that the heirs of a wife can not institute a petitory action unless and until the community between the wife and her husband has been liquidated, has been advanced a number of times before the court and passed on. The circumstances under which it has been advanced and the parties by whom it has been advanced, as affecting the decisions which have been rendered, have not been given sufficient weight to by the plaintiffs. In Heirs of Murphy vs. Jurey & Gillis, 89 An. 785, we said: “ The heirs of a wife become vested with a title to her share of the
The plaintiffs assign as another reason why prescription should not run the argument that when Ogden (being really only the owner of an undivided half of the property) undertook to sell the whole of the same to the defendant, he conveyed validly his undivided half to it, but the other undivided half remained the property of the heirs of the wife; that the heirs of the wife and the defendant were therefore joint owners of the property, and as between joint owners the prescription of ten years would not be applicable. Citing Heirs of Murphy vs. Jurey & Gillis, 39 An. 785; Tugwell vs. Tugwell, 32 An. 848; Glasscock vs. Clark, 33 An. 584; Simon vs. Richard, 42 An. 846; 56 Texas, 356; 21 N. E. Rep. 430; 1 S. E. Rep. 625; 14 South Rep. 734: 42 N. W. Rep. 955; 22 N. E. Rep. 529; 28 N. E. Rep. 348, 627.
The decisions cited refer to a state of facts entirely different from those in the present case, and have no applicability to the question as presented to us in this proceeding. It will be time enough to discuss what prescription runs between co-proprietors after the fact of the existence of the relation of joint owners between the parties shall have been judicially determined. Defendant repudiates the idea that the plaintiffs hold the property in joint ownership with it. That issue is the very one before the court. Defendant questions plaintiff’s rights to the undivided half of the property, just as he would question the right of a person claiming the property in its entirety. Defendant, in its purchase of the property, had nothing to do with the plaintiffs. Its purchase was of the entirety of the property, and it has the right to urge the prescription of ten years conformably to the title transferred to it to its full extent. This is not a suit for a partition between joint owners, but a petitory action.
In LeBlanc vs. Robertson, 41 An. 1023, this court held that in a petitory action brought by parties claiming to own undivided inter
For the reasons herein assigned, it is ordered, adjudged and decreed that the judgment appealed from be and the same is hereby affirmed.