145 So. 259 | La. | 1932
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *33 This is an action by a dative tutor on behalf of his minors, against their father and the surety on the bond he gave as their natural tutor and to secure the price for which his minor children's property was adjudicated to him as parent holding the property in common with them. Act No. 223 of 1920; Act No. 68 of 1924; Act No. 283 of 1926; Act No. 106 of 1924.
There was judgment below for plaintiff as prayed for; and the surety appeals.
That community owned the following seven pieces of real estate in the city of Monroe to wit: *35
(1) Lot on South Fifth street, near Layton avenue, having 100 feet front and 110 in depth.
(2) Another lot on South Fifth street, near Layton avenue, having 50 feet front and 110 in depth.
(3) Lot on South Fifth street, at the corner of Layton avenue, having 50 feet front and 143 in depth on said avenue.
(4) Lot on Dick Taylor street, having 30 feet front and 146 in depth.
(5) Lot on South Third street, at the corner of Stone avenue, having 50 feet front and 150 in depth on said avenue.
(6) Lot on Layton avenue near South Fifth street, having 40 feet front and 150 in depth.
(7) Lot on Stone avenue, near Fifth street, having 35 feet front and 100 in depth.
Of course these descriptions mean nothing here; but Monroe is the parish seat of Ouachita parish, where the trial judge holds his court, and thus there is a common-sense reason as well as a legal one for attaching much weight to his appreciation of the values of these properties.
The official appraisers, in whose estimation the children's share in the properties was adjudicated to their father (under the *36 provisions of Rev. Civ. Code, art. 343, as amended by Act No. 78 of 1914), valued the minors' half interest in the properties at $6,000. But the testimony of one of the official appraisers is that this value was placed on the minors' equity, or the net value of their interest in the properties after deducting thedebts owing by the community; and this testimony is uncontradicted although the other appraiser was easily available. In other words, the official appraisers undertook to liquidate the community extrajudicially. This they had no right to do, as the adjudication to a parent cotenant of a minor must be for the whole value of the property without deduction; the liquidation of the community, if there be one, should follow and be done judicially. But the fact remains that the official appraisers did as aforesaid.
Plaintiff contends that the father (who was destituted of the tutorship because of having gone into insolvency) having bought the minors' share in the property for $6,000, there is nothing left for the father (and his surety) but to pay the price regardless of any equities between the father and his children; and he relies on Townsend v. Atterberry,
That case does not support this contention; it is authority for the proposition that, where a parent has his minor's property adjudicated to him, neither he nor his surety, especially one who becomes such after the adjudication, can complain that the price of *37 adjudication was too great, no more than any other purchaser, or surety for a purchaser, can afterwards complain that the price promised at the time of the sale was too much. But, we said distinctly that "we do not dispute the fact [and it still appears to us indisputable] that the surety on the tutor's bond is liable for only such balance as may be due by the tutor in final accounting." And we see not the least conflict between these two propositions.
On the other hand appellant accepts de plein cœur the proposition that the surety, and, for that matter, the principal debtor himself is liable for only such balance as may be due on final accounting. Hence it argues that the father, and by the same token his surety also, may deduct from the price of adjudication the debts with which the adjudicated property was encumbered. But it contends that the estimation of the official appraisers is conclusive, and accordingly that the price of adjudication was absorbed more than twice over by (the wife's half of) the debts with which it was burdened. In other words, it contends, and correctly, that the debts due by the community must be deducted from the value of the property belonging to the community before it can be ascertained how much is due the minor heirs of the deceased wife. But it denies that it may be shown that these debts had already been deducted from the value of the property at the time when the estimation was made by the official appraisers and the property adjudicated to the father, which was, of course, highly irregular, but seems nonetheless to have been the fact. *38
"The principal object of the law, in requiring a public inventory to be made of all the effects, moveable and immoveable, belonging to a succession or to a community, is to establish the existence of all the property, and to show the whole amount or value thereof. Such inventory is to contain the estimate of all the effects to be made as to each article, by appraisers, who must be appointed and sworn by the judge or notary who makes the inventory; * * * and after it has been registered, it shall be admitted as proof in courts of justice. * * * Such an inventory is to serve as the basis of the settlement of the estate, so far as it shows the effects, moveable and immoveable, moneys and credits belonging thereto, and so far as it establishes its situation; but we are not ready to say that it should be received as conclusive proof of the real value of the property therein described, so as to be used as the exclusive criterion by which the interested parties are to be charged, in the partition of the property, and settlement of the estate. Except where the law has positively said that the property so inventoried shall be taken at the estimation price, we understand that the estimation made by the appraisers, not being conclusive, must often yield to the proof of its being excessive or incorrect."
We reaffirm this doctrine. Were it otherwise the appraisers, at such inventories, the mere aids and guides of the court, would be *39 vested with powers more ample and plenary than any confided to the judge himself, whose acts are always subject to review; and surely the law contemplated no such condition.
Here the evidence shows that the actual value of the community property exceeded $40,000, but the incumbrances thereon amounted to $25,000; and we think it was competent to show that, in estimating the value of the minors' interest in the community property, the appraisers, though they acted irregularly, did in fact deduct from the whole value of the property the amount of the incumbrances thereon, and that their appraisement represented only the net value of the residuary interest of the minors in the community.
We also there held, under the express terms of Act No. 225 of 1918, that the surety was not liable for attorney's fees unless the plaintiff recovered the full amount of his claim.
The judgment below must therefore be amended as to the last items mentioned above.
O'NIELL, C.J., concurs in the decree. *42