Scott's v. Gorton's

14 La. 115 | La. | 1839

Strawbridge, J.,

delivered theopinion, of the court.

At a former term, this cause having been heard, and judgment rendered for the defendant, a rehearing was granted, and it has again been argued before us.

Gorton, the defendant, having purchased a female slave and child at a probate sale of a succession administered by the plaintiff, refused to carry into effect the adjudication, on the ground of some supposed or real redhibitory vice.

Executors ns well as curators, tutors and. other mandatories, are prohibited from purchasing part of the succession administered by them on pain of nullity, at a sale of property to pay the debts of the succession.

A second sale was made at the risk of the first purchaser, at which the slave was struck off to the plaintiff for a smaller price, and this suit was brought to recover the difference between the two sales, (some six or seven hundred dollars,) with damages.

The former judgment of this court was adverse to these claims, for the reason that the second sale was void, the executi'ix being incapable of purchasing.

The rehearing was granted on the allegation that the sale was made in a suit in partition, provoked by some of the heirs, the present plaintiff, one of the co-proprietors being a defendant therein, and capable of purchasing at a sale made with a view to partition.

Had this view of the case been supported by the testimony, it is not perceived how we could have refused to alter the former decree, but an examination of the record shows conclusively that the sale was made as well to pay debts of the succession as for the purpose of partition. Such is the statement in the order of sale, (the petition not making part of the evidence.) There is, also, a further order not referred to in argument, made in three suits against the succession, wherein it is stated, that, “for the purpose of meeting the pressing exigencies of the estate, the sale shall be made for a part cash in hand.”

The petition further states that “the plaintiff specially brings thi§ suit as executrix of the succession.”

The case is, therefore, presented, of an executrix purchasing a part of the succession under her administration, and is a nullity ; for we think that the reason of the rule applies as well to executors as to curators, tutors and other mandatories. Article 1139, of the Louisiana Code, prohibits “curators from making sucli purchases by himself, or by means of a third person, under pain of nullity,” &c. And article 1663, provides that “ the executor shall proceed to the sale, in the same manner as curators of vacant successions.” Article 1784, we also think under the class of “administrators,” includes executors.

The plaintiff, however, contends that the nullity is not absolute, but relative, and cannot be invoked by others than those in whose favor such nullity is pronounced, and to prove this, he argues that the sale might be ratified by the heirs and creditors for whose benefit alone it has been pronounced. r

j. he nullity re* suiting. from a to°exeou?orsSaof ProPert/ of llie ministered by No^subWqnent ratification ?im againstthirdper-who’arenot pai-I tie?t0 llie ratlfi' The ratifi ca- {¡,™ nuiilty'^cañ is anew title, and tiiiT^nghts^of ^óusíy'ltacqHh'I ed,-whiistareia-lates tefthe ori-S'lnaIact-

# The test, we think, is not a correct one, as certain absolute nullities may be ratified by those interested. See 7 J J Toullier, No. 561. Indeed, it is difficult to understand how any nullity, on whatever considerations founded, may not be acquiesced in by those interested. But we can understand, that though they may choose to act as if it were valid, yet, if it be an absolute nullity, then ratification cannot bind others.

The same author, in No. 558, tells us, that the absolute nullity may be distinguished from the relative, easily :

“ Toute disposition qui déclare positivement et sans restriction la nullité d’un acte, autrement la simple declaration de nullité, quel qu’ait été le motif du législateur, soit pour cause d’inlérét public, soit pour l’intérét des particuliers, soit pout-vice de forme opére une nullité absolue, par cela méme qu’elle n’est pas limitée a certaines personnes.

“Elle peut done étreinvoquée non seulement parchadme des parties contractantes, par leurs héritiers ou ayant-cause, mais encore par toute personne intéressée a ne pas recon-naitre l’acte nul.”

If this definition be correct, the nullity pronounced by arti-de 1139, prohibiting purchases by a curator, and pronouncing a simple declaration of nullity, is an absolute nullity, which, though it should be agreed to be merely for the interest of individuals, and so might be ratified as regards them, is still to be used to a certain extent by others, for the same author, in Nos. 563 and 564, distinguishes between the ratification of absolute nullities, declared for the interest of individuals, and of relative nullities, and says the former can have no retroactive effect, but is a new title, and cannot prejudice rights of third persons previously acquired, whilst the latter relates to the original act. The subject is one of difficulty, and we treat it, with great diffidence.

That the defendant, for whose account and risk the second sale was made, had an interest that such salé should be legally made, and t,o the best advantage, is scarcely to be doubted ; that the party making such sale was bound to see fhe sale so conducted, is equally clear. The argument that he became purchaser, by bidding higher than any other, and thus did him a benefit, is unsound. “When to prevent fraud, or from any other motives 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 not been proved fraudulent,” &c. The provision in question is not , only for the protection of individual interest, but to maintain public order and morality. “Lead us not into temptation” is its basis. It boots not that the tutor of a minor, or the administrator of a succession, is the highest bidder, for, to be a purchaser, he must always be this. It would avail nothing, though he paid double the acknowledged value. His purchase is against public order; it is prohibited, it is pronounced a nullity, and all persons interested may oppose it. And although those for whose interests the legislature may have also had regard, may hereafter ratify it, they cannot deprive others of the right of opposition acquired before such ratification.

For these considerations, it is ordered, that the former judgment of this court remain unchanged.