37 La. Ann. 155 | La. | 1885
The opinion of the Court was delivered by
The plaintiffs sue to annul a partition made during their minority, of a plantation lcuown as the Home Place, in Iberville parish. They also claim the nullity of the subsequent transfers of the property. They bring in all necessary parties.
They base their action on the ground that the proceedings were illegal and fraudulent, and that they have sustained injury.
The main defense, which avails all the defendants, is, that the x>lain-tiffs, since their majority and emancipation, have, by public act, ratified the partition and the subsequent transfers of the property and are thus estopped from contesting the title which the present owner has since acquired to it. The plaintiffs are also met with the plea of tiie prescription of five years, in bar to the action in rescisión.
The record shows that the plantation was adjudicated at the partition sale on May 6, 1871, for $50,000 to Gov. Hebert, plaintiffs’ father; that he afterwards sold it on terms to F. J. Montijo, who, on failure to pay, was expropriated judicially—Mrs. Penelope Hebert becoming the adjudicatee; that in an act of mortgage by-her, in favor of Chism & Boyd, on February 10, 1877, which recites the provenance of the plantation, the plaintiffs intervened and waived in their favor the preference and priority which they had as security for the payment of the amount due them from the partition and mentioned in the certificate of mortgage annexed to the act, and recited therein, and which was of $2,808.10.
The plea of prescription set up, is also An effectual bar to plaintiffs’ recovery. More than five years had elapsed at the institution of this suit, since the majority of one of the plaintiffs and the full emancipation of the other.
Mrs. Sewall was born on the 16th of December, 1851, and became of age December 16, 1872. Mrs. Proctor was fully emancipated on January 10, 1876, by the judgment of a competent court.
In 36 Ann. 250, this court held, in an action by Mrs. Proctor against her tutor, that the prescription of four years pleaded against it began to run, not from her majority, but from the date of her emancipation.
The present suit was brought on August 25, 1882. The action in rescisión of the partition was then barred by the prescription of five on the 17th of December, 1877, as to Mrs. Sewall, on the 11th of January, 1881, as to Mrs. Proctor. R. C. C. 3542.
Judgment affirmed with costs.