Ross v. Ross

3 La. Ann. 533 | La. | 1848

Lead Opinion

The judgment of the court was pronounced by

Rost, J.

The plaintiff, being the testamentary executor of his father, William Ross, represents that the testator left at his death five children, George, John, Robert, Ann, and himself, each of wbom inherited one-fifth of his succession; that Ann subsequently died intestate and without issue, leaving her brothers her heirs, each for one undivided fourth. He further alleges that he purchased the share of John Ross, on the 20th of June, 1835, and that the share of Robert Ross, now deceased, was purchased by him and George, he, the plaintiff, having paid $1,400, and George $600, of the purchase money. He avers that, in consequence of his purchase, John’s share in the succession is limited to the fourth of the share of Ann, and claims that the remainder be divided in the proportion of five-eighths to himself and three-eighths to George. To this petition praying fora partition'of the succession, John Ross answered, that the pretended sale under which the plaintiff claims his share in the succession was a complete and absolute nullity; that the plaintiff was legally incapable of acquiring by purchase the defendants’ interest in the succession ; that the sale was made in fraud of his rights, and that the price was inadequate and dis-proportioned to the value of the thing sold. ‘He further averred that, by reason of his incapacity to purchase, be has no title to the share of Robert. George Ross, the other defendant, filed a general denial, admitted the heirship; and joined in the prayer for a partition. The court below rendered judgment according to the prayer of the petition, and the defendants appealed.

In the case of Michoud et al. v. Girod et al., on which the defendants mainly rely, the Supreme Court of the United States remarked: « We scarcely neecf add that a purchase by a trustee of his cestui que trust, sui juris, provided it is deliberately agreed or understood between them that the relation shall be considered as dissolved, and there is a clear contract, ascertained to be such after a jealous and scrupulous examination of all the eireumstances; and it is clear that the cestui que trust intended that the trustee should buy,and there is no fraud, no concealment, and no advantage taken by the trustee of information acquired by him as trustee, will besustained in a court of equity." 4 Howard, 556. This rule of equity jurisprudence harmonizes with the dispositions of our Code. The incapacity created by arts. 1139, 1784, endures as long as the relation of trustee and cestui que trust, and no longer. If the contract by which the trustee acquires the property previously committed to his charge, necessarily terminates that relation,- it may be voidable on other grounds, but it does not come within the prohibition.

The sale by two of the heirs, in this case, of their hereditary rights, necessarily implies the deliberate intention on the part of the vendors that the relation of trustee and cestui que trust should cease, so far as their shares went. There is a clear contract made by persons capable of contracting, and who intended that the trustee should buy.

Fraud and concealment are alleged, but no evidence whatever has been adduced in support of the allegation. It is contended that, in the sale of John Ross, concealment and fraud are proved by the inadequacy of the price. The evidence of this fact is very loose and unsatisfactory. But if it was the reverse, the plaintiff has pleaded the prescriptions of four and ten years ; and we are of opinion that one of the two pleas must avail him. Civil Code, arts. 1870, 2218.

Inadequacy of price is either lesion or evidence of fraud. If it is lesion, the action is barred by four years. If taken as evidence of fraud, the action is limited to ten j ears from the discovery of the fraud, which, in a case like this, must, for want of better evidence, be taken to be the date of the sale. The prohibition found in art. 1784 of the Civil Code, on which the defendants rely, is analogous to that found in art. 1596 of the Code Napoléon. The nullity which this last article establishes is held by french commentators and courts of justice to be merely relative, and introduced exclusively in the interest of the owners of the property of which that article forbids the sale. Rogron, Code Civil, on art. 1596. 3 Delvincourt, p. 66, 126, notes.

It is a rule that admits of no exception that, every man who has the right to attack an onerous contract which the law declares null for his private benefit, makes it valid and obligatory upon him by his ratification, express or implied, or, in default of ratification, by his voluntary execution of it subsequently to the period at which the obligation could have been validly confirmed or ratified. The sale made, without the formalities of law, by the tutor, of the immovables belonging to his ward, is considered in law as an absolute nullity; and yet the minor may ratify it, expressly or tacitly. L. 10, ff. Re Rebus Eorum. Toullier, vol. 7, nos. 594, 595, 596 ; vol. 8, nos. 517, 518. Every nullity which may thus be ratified, is held by the french courts to be prescribed by ten year's, under art. 1304 of the Napoléon Code, which is word for word the same as art. 2218 of our Code. This has been the jurisprudence of France ever since the ordinance of Louis XII, passed in 1510, for the purpose, as is therein stated, que les domaines etpropriüés des chases ne soient incertaines et sans súreié, es mains des possesseurs d’iceües, si longuement qu’ils Vont etc ci-devant. Francis I, in an ordinance passed in 1535, re-enacted this disposition, and gave the same reasons for its necessity. The Code Napoléon, says Toullier, has sanctioned the disposition of this ancient legislation; it does not distinguish whether the nullity is absolute or relative, or the causes in which it originates, but fixes in all cases the duration of the actions of nullity and rescission to ten yoars, in order to insure the stability of transactions and the peace of families. 7 Toullier, no. 599.

The only class of nullities to which this prescription is considered in France as inapplicable, are those resting on motives of public order or utility, or taking their source in the respect due to morals; and, even in those cases, if the con. tract ceases to be illicit, it is from that time susceptible of ratification, and the prescription of ten years is applicable to it. We must presume that our law-givers in adopting this disposition of the law of France, intended that it should receive here the application it has received there during the last three centuries. It has been thus uniformly understood heretofore, and nothing would authorize us to change in that respect the jurisprudence of the State.

Bonford, for a re-heaving.

The judgment of the court in this case, so far as it concerns the rights of John Ross, is based upon the prescription of ten years, pleaded, for the first time, by the plaintiff in this court. Petitioner submits that the Supreme Court is incompetent to pass, in the firs! instance, on any issuable plea. Tho constitution limiting its jurisdiction exclusively to cases and questions presented by way of appeal from an inferior tribunal. Whether or not a right or obligation is extinguished by prescription is a mixed question of law and fact,to be tried and determined upon pleadings and issues properly made up between the parties. If this issue be for the first time tendered to the opposite party, when the case is in the Supreme Court, no other action ean be had than to remand the case for farther action to the inferior court.

It is assumed by your petitioner that, without the intervention of the plea of prescription, he would have been entitled to have had the sales to the plaintiff' annulled.

The court lays much stress upon that portion of the opinion of the United States Supreme Court, in the case of Michoud v. Girod, in which it is intimated that a case might possibly present itself, in which a sale, by a cestui que trust to his trustee, might be sustained by a court of Equity. Although the court there puts the case as an extreme one, it is still difficult to reconcile this portion of their opinion with the absolute and unqualified declaration of the incapacity of trustees to purchase, as set forth in other portions of that document. It is to be observed that the cases quoted in support of the modification of the rule, are all english cases, which were carefully and elaborately reviewed by Chancellor Kent in the case of Davoue v. Fanning, 2 John. Chan. Rep. 254, who did not hesitate to express his disapproval of them, and to insist on the absolute and unqualified character of the incapacity. But a very wide distinction is to be observed between the present case and that of Michoud v. Girod, in so far as the reasoning of the Supreme Court, just referred to, can be held applicable. It must not be forgotten that in the Girod case, the court was sitting as a court of Equity ; that it was administering relief according to the rules of equity proceedings, and according to the maxims and principles prevalent in courts of Equity. They were considering the extent of the general maxim, created by the english Equity courts, that a trustee can never become á purchaser. They were not, in that branch of their opinion, quoted by the court in the present case, passing upon the effect to be given to an absolute, stringent statutory provision. Neither at common law, nor by statute in England, did the incapacity in question exist. It was created by the court of Equity, and the Supreme Courtof the United States, in examining the doetrine of the cases upon this subject, took occasion to quote, with approval, the modification which the english courts had thought proper to make. Equity courts administer relief according to the circumstances of the particular case : and although, where the law determines the right of the parties, they are bound equally with courts of law to follow and observe the law, yet where they are applying principles and maxims which have been created by their own tribunals, they will never consider these of so unbending a character, but that they shall be made to yield to the peculiar circumstances of a case not within the mischiefs designed to be guarded against by the rule. The third' chapter of Story’s work on Equity Jurisprudence, contains numerous instances.

The defendants have generally denied the allegations of the plaintiff, and the correctness of his account. The sale from Robert to him and George, states them to have been joint and equal purchasers. But the account presented distributes this share as if 551,400 of the price had been paid by the plaintiff, and 55600 only by George. There is no evidence in the record to justify that distribution.

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Rehearing

Same Case — On an Application por a Re-hearincj.

But in the present case no such discretion can be assumed. The incapacity, if it exist at all, is of positive legislative enactment. The law has made no exception, and the courts can create none. On this subject the 19th article of the Civil Code may be invoked : “ When, to prevent fraud or from any other motive of public good, the law declares certain acts void, its provisions are not to be dispensed with on the ground that the particular act in question has been proved not to be fraudulent, or not to be contrary to the public good.” If the law has declared that an executor shall not purchase any portion of the estate committed to his charge, it is not in the power of the tribunals to declare, in any given case, that such a purchase is valid, because not within the mischief which occasioned the rule.

The grounds of public policy on which this incapacity is created, are apparent. When article 1596 of the Napoléon Code was presented for examination, we find reasons of public policy most prominently brought forward to justify its adoption. Thus: “Les raisons de sfireté et d’honnéteté publiques qui motivent ces défenses sont trop evidentes pour qu’il soit nécessaire de les developper.” Poncelet, Motifs du Code Civil, tome 1, p. 592. And Mr. Portalis : “ II convient d’ecarter d’eux jusqu’au soupfon qu’ils ont abusé de leur autorité ora de leur ministers.” Locré, Code Civil, á Particle 1596, p. 134. Troplong, in deciding that the offending party cannot avail himself of the article in question, says: “ Lesincapablés dont il vient d’etre question, ne serait pas fondés a s’en prévaloir eux-mémes. Leur propre délit ne saurait étre une raison de Ies affranchir de leurs obligations.” Duranton is to the same effect.

The court rely principally upon Toullier, vol. 7, no. 599, and upon Rogron, in coming to the conclusion that the nullity is cured by the prescription of ten years. Toullier’s views, upon the subject of nullities, and of the prescription by which they are affected, seem to be peculiar. It is certain that they are not assented to by the more modern commentators. Troplong makes an able reply to the doctrine of the articles of Toullier, quoted by the court, in which he is sustained by the opinion of Duranton. See Troplong, Vente, no. 249. Duranton, vol. 12, nos. 523, 524. Rogron, as cited by the court, simply decides that the nullities mentioned in articles 1596 and 1597, are relative with respect to the persons who can take advantage of them. But, as conclusive evidence that the question of prescription is not affected by this, we find'Troplong giving as an instance in which prescription is not pleadable, the case of an attorney purchasing a litigious right. Troplong, Prescription, no. 905. The case being one of those prohibited by art. 1597, and the nullity, as determined by Rogron, being of precisely the same character as that declared in art. 1596.

The jurisprudence of this State has been settled by a series of decisions, determining the character of the nullity of a purchase made by an executor. Since the case of Harrod v. Norris, 11 Mart. 298, the Supreme Court has liad occasion more than once to apply the doptrinos therein declared. In the case of Macartyv. Bond’s administrator, 9 La. 351, the court insists that where an executor attempts to purchase, his incapacity is such that the contract of sale cannot exist. The nullity is of so radical a character, that it destroys the contract in its very inception. So in Scott, Executrix v. Goton’s Executor, 1'4 La. 123, it is expressly, declared that the nullity is absolute. The court declares that it is of no-consequence to examine, whether or not injury has been occasioned to the parties for whose benefit the property is administered. The prohibition to purchase being absolute, the incapacity is equally so.

In this case, the relation of the plaintiff to John Ross, as executor to their father’s estate, still exists. The petition itself of the plaintiff shows that this relation still exists.

The opinion of the court was pronounced by

lime, J.

The judgment of the District Court is reversed, and the case remandedfor anew trial; the appellees paying the costs of this appeal.