| La. | Jun 15, 1859
'This is an action via ordinaria, to subject tho mortgaged property to the payment of the debt of P. E. Chexnaidre, deceased, and to obtain judgment against the widow in community, in her individual capacity, for one-half, and against her, as tutrix for her minor children, for the other half. Judgment having been rendered against the defendant individually, and as tutrix, she appeals.
The mortgagor, P. E. Chexnaidre, died in February, 1855. The widow took no steps to procure an inventory or qualify as tutrix, until August, 1858. In the interval she appears to have retained possession of the property. She made an arrangement each year for the prolongation of the term for the payment of the note in question, and paid one hundred dollars in part satisfaction of the same, besides paying the annual interest.
Having subsequently obtained letters of tutorship and administration, and having renounced the community, the question is raised, whether her renunciation can now avail her, or whether she is personally bound for one-half of the debts of the community.
It is urged, that her neglect to take an inventory cannot prejudice her, because she was entitled to the usufruct of the property under the Act of 1844. Without undertaking to decide whether the mere neglect of a widow in community to take an inventory will render her chargeable for one-half of the debts, we observe that the Act of 1844 does not dispense the party who claims the benefit of that statute, from taking an inventory. C. C. 550 ; Neely v. Stokes, 13 An.
In this case, the widow not only remained in possession of the estate without an inventory, but before she had qualified as tutrix, or as administratrix, she stipulated in writing for the extension of the debt of the succession, and made payments upon the same. She must therefore be presumed, in the absence of explanatory proof, to have acted in the only capacity in which she had authority to act, viz, as partner in community, and she is bound as such. O. O. 98T, 988, 990, 995.
At the time the suit was commenced, the widow had qualified as tutrix, but had not been appointed administratrix. It was, therefore, properly commenced,
The judgment against the defendant,, as tutrix of her minor cMHren, does not,, therefore, bind the succession, and could only be' enforced against such other property as the minors may happen to owm Now, as' the law accepts the succession for the minors with the benefit of inventory, a judgment ought not to be-rendered in this form, which will bind their estates' generally, and which may be1 enforced by an execution.
The judgment also compels the widow to-pay more'than one-half of the debt’,, for she is not allowed a credit upon her onediulf for1 the payment which she has: made.
It is somewhat inconsistent to charge her; as' widow in community, with one-1half of the debts of the succession, because the'payment made' by her could'only have been made in that capacity, and then not to> allow her a< credit for tlie-payment in the same capacity.
We think the widow is entitled to the credit of one-hundred'dollars-on¡ her proportion of the debt.
The action is via ordinaria, and plaintiff demands a judgment against his'debtors, and also a decree that the m ortga.ged property- be- sold to satisfy the debt. In-this respeet, the case differs from the case of McCalop v. Flucker's Heirs; 12 An. 551, where executory process issued, and where' the-notices- were served' on the' tutrix and widow in community before she had qualified' as-' administratrix, but-did not beeome void for that reason. The wi'dbw in'that case'took the appeal as1 administratrix, and the subsequent notices were' doubtless served upon heras; such. 12 An. 345.
The mortgage being indivisible and only accessory to-the debt, a decree cannot-properly be rendered for the sale of the property,, in: this-form of action, with out-parties before the court against whom a judgment maybe rendered for the whole' debt. C. P. 67. It is in this sense that a mortgage-is:indivisible. C. P. 66, 67; C. C. 1382, 2108.
We think the case ought to be remanded for a- new trial, with leave to- the1 plaintiff to amend by making the administratrix a party defendant.
It is, therefore, ordered, adjudged and decreed by the court, that the'jud^ment of the lower court be avoided and reversed, and! the- case-be remanded,to the-lower court for further proceedings and a new trial,,the-plainti£fi'ha.v>ing. leavo-to> amend, and he paying the costs of the appeal.