21 La. Ann. 486 | La. | 1869
This suit was instituted to enforce the payment of certain promissory notes, executed by John L. Chapman. The notes were secured by special mortgage on lands situated in the parish of Catahoula. The plaintiff alleging that John L. Chapman was dead, and that his widow and heirs were absentees, prayed that a curator ad hoe be appointed to represent them in the proceedings, and he prayed for the sale of the mortgaged property to satisfy his debt.
A curator ad hoe was appointed and he filed an exception alleging that the heirs, some of whom are minors, have not accepted the succession, without the benefit ot inventory; that the widow has the right to renounce the community; and that the curator ad hoe is without power to stand in judgment. He prays that an administrator bo appointed to represent the succession.
This exception was sustained by the District Judge, and the suit was dismissed.
We think there is error in the judgment. The plaintiff had the right to proceed in rem to foreclose his mortgage, without provoking the appointment of an administrator to administer the succession. If the act import a confession of judgment, and there have been no partition of the estate among the heirs, “the creditor shall be entitled to seize and sell the hypothecated property, as if the original debtor were stillalive.” C. P. art. 66;1 An. 204, Boguille, Administrator, v. Faille: 2 An. 916; 12 An. 551, 591. The case of the State v. Leckie, 14 An. 641 relied on by defendants, is not in point.' In that case the proceedings were not in rem.
It is therefore ordered, adjudged and decreed that the judgment of the District Court be avoided and reversed, that the exception filed in the suit be overruled, and that this case be remanded to be proceeded with according to law, and that the appellees pay the costs of appeal.
