11 Rob. 266 | La. | 1845
This action is brought against the widow and heirs of Francois Trepagnier, who had become surety on an appeal bond for Pierre Trepagnier, against whom the plaintiff recovered a judgment for $15,000, with interest from the 3d of May, 1836, which judgment was affirmed by this court in June, 1842. 2 Robinson, p. 358. It is alleged that, since the signing of the bond both the principal and the surety have died, the latter leaving a large estate to the defendants, his widow and children. That, on the 6th of October, 1842, an alias fi. fa. was issued against the heirs of the late Pierre Trepagnier, by virtue of which a levy was made, and the net amount of $11,475 12 was paid over to the plaintiff, leaving a balance still due to him of $8,527 88, with legal interest from the 7th of January, 1843, and that said writ has been returned, “ no property found after demand made of both parties.” Judgment is prayed for against Marguerite Foucher, widow of the late Franqois Trepagnier, for one half of the balance due, as having held the property of the deceased in community with him and not having renounced, and against her co-defendants for one-tenth each, as heirs of the deceased.
The defendants admit the signature of Francis Trepagnier to the appeal bond, but allege that, in consequence of the gross neglect and indulgence of the plaintiff, the whole of the property, real and personal, of Pierre Trepagnier, the principal debtor,
It is in evidence, that Pierre Trepagnier died in October, 1838, pending the appeal; that he left a widow in community, and eight children; that an inventory of his estate was made, which shows that his property amounted to $87,981 50, and his debts to $54,000, including $18,000 that were then due to Francois Saulet; that Marie Céleste Delhomme, his widow, accepted the community, and kept, at the price of the appraisement,
Under these facts, we think with the appellants’ counsel, that the present action is premature, and that the contingency has not yet arrived on which the widow and heirs of the surety in the appeal bond can be made liable. According to article 579 of the Code of Practice, the condition of their ancestor’s obligation was, that the appellant should satisfy the judgment to be rendered against him, or that the same should be satisfied by the sale of his estate, real or personal. In Chalaron v. McFarlane, this court held, under that article, that sureties on an appeal bond have a right of resisting a recourse on them, until it is clearly shown by the creditor, that the sale of all the estate and effects of the principal has proved insufficient to discharge his demand. 9 La. 227.
On the death of Pierre Trepagnier, his obligation to satisfy the judgment in favor of the plaintiff devolved not only upon his heirs, but also upon his widow, who, by her acceptance of the community, became bound to pay one-half of its debts. With regard to the surety on the appeal bond, the said widow and heirs became the principal debtors in lieu of Pierre Trepagnier; and it is only in case they do not satisfy the judgment so far as they are respectively bound for it, or in case the same cannot be satisfied by the sale of all their property, real or personal, that the defendants, as the widow and heirs of the surety, can be made liable in their place. We are by no means prepared to say that in general a creditor may not, if he choose, look to the heirs of his debtor for the whole amount of his claim. In such a case the heirs could not pretend that, because the wife had ac
It is, therefore, ordered that the judgment of the District Court foe reversed, and that ours be for the defendants as in case of non-suit, with costs in both courts.