11 Rob. 314 | La. | 1845
The judgment appealed from in this .case by the. dative testamenty executor of the estate of Sarah Baum, deceased, and also complained of by John Kellar, the original plaintiff in the action, decides, that said John Kellar was the lawful husband of Sarah Baum; that all the effects possessed by said Kellar and the deceased are common acquests; and, accordingly, orders that an inventory of the property held by them at the dissolution of the community be made before a notary public, and appoints two appraisers for that purpose.
For the better understanding of the subject in controversy, it is first necessary to advert to certain facts which preceded the death of Sarah Baum, which happened in March, 1839; to dispose of the question of marriage upon which this suit was instituted ; and to examine the course of conduct of the plaintiff, with regard to the interest by him claimed in .the community, since the decease of his wife.
The evidence shovirs fully that John Kellar and Sarah Baum, lived together as husband and wife, in Shippingport, Kentucky, in or about the year 1818, and subsequently, after having been married in a neighboring State. They resided at that place until about 1821, when they both went away, and it was generally understood at Shippingport that they went to New Orleans. Two witnesses, who were examined in Kentucky, prove- that they were present at the marriage ceremony, and that it took place at Clarksville, in Clark county, in the State of Indiana, opposite to Shippingport, before Jacob Brookhart, Esq. who, as the witnesses state, was acting as a justice of the peace át the time of, before, and after said marriage. After their arrival in
It is clear, therefore, that John Kellar was the head, or master of the community which had legally existed between him and Sarah Baum; that said community was dissolved by the death of the wife, in March, 1839 ; and that all the effects and property then in the possession of the spouses, or of either of them, are necessarily presumed to belong to the said community. Civil Code, art. 2374. The heirs of the wife had the privilege of renouncing the partnership or community of gains, to exonerate themselves from the debts contracted during the marriage (Civil Code, art. 2379); but the husband, being the head and master thereof, could never do so, either directly or indirectly.
It appears, however, that some time before the death of his wife, there was a suit brought against Kellar for a debt of his contracting, in a chancery court in Kentucky, (the record of which, though produced in evidence in this suit, is not in the record,) in which, Kellar’s deposition was taken to disprove his fnarriage with Sarah Baum, (this deposition is not in the record,) and that the deceased wrote to him from Louisville, on the 17th of July, 1831, the following instructions, clearly relating to said gait; “ Mr. I),. „ has sent those depositions down in a letter
But it further appears that Kellar soon lost sight of his false deposition, for the present suit was instituted by him on the 14th of May, 1839, against the testamentary executor of the estate of Sarah Baum, for the purpose of claiming, as the lawful husband of the deceased, to be recognized as entitled to his share of the community property, whether in his, or his wife’s name, and of causing an inventory thereof to be made. Kellar’s .petition was answered by the testamentary executor, on the 28th of May, 1839, denying all the allegations of the plaintiff’s petition, and referring to the suit in Kentucky, as evidence of his not being the lawful husband of the deceased, from his own declaration as a witness therein, &c.; and the present suit remained unacted upon on the docket of the court a qua, until the 4th of November, 1842, when the New Orleans Canal and Banking Company, being creditors of the plaintiff Kellar, by virtue of certain judgments duly transferred over to the said company, and fearing that their debtor, who was in insolvent circumstances, would desist from prosecuting his action, as he had refused to prosecute the same by taking no step therein for more than three years past, obtained leave to intervene and to prosecute and exercise the rights of their debtor, as husband and partner in community of Sarah Baum, contradictorily with the testamentary executor of the deceased, and with the tutor of her grand child and only heir, and prayed that Kellar might be re-cognised as the husband of the deceased, and joint owner of the community property, &c.
On the 16th of January, 1843, the intervenors filed a supplemental intervening petition, in which they set up that, on the 17th of December preceding, they purchased at sheriff’s sale, at auction, all the right, title and claims of John Kellar to the present suit, pretending to be authorised, by virtue of said purchase, to procecute his said rights to a final adjustment and termination, and praying accordingly. This supplemental petition was also answered by the executor, who pleaded the general issue, excepted to the jurisdiction of the court, and averred that the proceedings under which the sale of Kellar’s rights was made, were illegal and irregular, without any legal advertisement and appraisement, and consequently null and void. The testamentary executor subsequently filed a plea of prescription, said to have been acquired previous to the filing of the petition' of intervention.
The record further shows that, on the 31st of May, 1831, a suit was brought by one W. T. Huff, against John Kellar, in the Commercial Court, based upon the fact of the defendant’s having employed him to procure the proof of his, Kellar’s, having been lawfully married to Sarah Baum, in Indiana, and of his, plaintiff’s, having succeeded in finding the necessary evidence to substantiate Kellar’s claim under the said marriage, claiming from the latter the sum-of $ 1,500, as a just compensation for his services, according to a written agreement filed with the plaintiff’s petition. Said petition is accompanied by a certificate and declaration of an individual, showing the marriage of Kellar with Sarah Baum, in Clark county, Indiana, and by divers letters written by Kellar and his counsel to the claimant, in May,
The intervenors’ claim under the sheriff’s sale, as shown by the sheriff’s return on the execution which issued on one of the judgments, is founded on the adjudication made to them on the-17th of December, 1842, of “ all the right, title and claims of John Kellar in and to a certain suit now pending in the Court of Probates, entitled John Kellar v. The Succession of Sarah Baum, no. 1280 of the docket of said court, for the sum of #50, which was applied to pay costs, &c.” And the evidence also shows,, that the intervenors became the transferrees and owners of the judgments described in their petition, by an act of transfer executed in their favor by one Thomas Powell, on the 5th of August, 1841.
After this exposition of the pleadings and of the facts disclosed by the evidence, the first object of our inquiry grows out of a bill of exceptions taken to the opinion of the judge a quo, who permitted the depositions of certain witnesses, taken under a commission, to be read as evidence on behalf of the intervenors. The objections were: 1st, that it does not appear that the witnesses were sworn before a person qualified to administer an oath; and 2nd, that Kellar had no opportunity of cross examining the witnesses.
I. The commission is addressed to William Hardin, Esq., notary public, or any other judge, or justice of the peace in the county of Floyd, State of Indiana; and the testimony was taken by the said William Hardin, who states in his certificate, that “ the witnesses severally subscribed and swore to their respective
II. We agree with the judge a quo in the opinion, that the facts intended to be proved, to wit, the marriage of John Kellar with Sarah Baum, are in support of his allegations made in his petition as plaintiff, and that he cannot, therefore, be viewed as a party defendant.
On the merits, three questions have been raised by the appellant’s counsel, which it becomes now our duty to examine. It has been contended: 1st. That the evidence does not support the allegations contained in the original and supplemental petitions of intervention.
2nd. That the supplemental intervention is based upon a new cause of action, and cannot be maintained.
3rd. That the plea of prescription should have been sustained.
I. We have already expressed our firm opinion that the marriage of John Kellar with Sarah Baum, deceased, was satisfactorily established, and that, from the evidence, we were satisfied that she was Kellar’s wife at the time of her death. Indeed, we' have rarely seen a case in which the main fact at issue between the parties, was more satisfactorily made out, not only from the direct evidence adduced to prove it, but also from all the other circumstances shown by the defendant, and intended to throw doubt upon its existence. Here, independently of the-testimony of the witnesses who were present at the marriage, ceremony, the conduct of the husband and wife in relation to a suit, in which it was deemed necessary, in order to practice a fraud, not only to deny the existence of the marriage, but also to show by thé deposition of one of them, that it had never taken place, has had the effect of convincing us that they were really married, and that the declaration of the husband, was only the-
We think, therefore, that the intervenors’ allegations of intended fraud” on the part of Kellar, have been substantially made out; that they had a right to intervene for the purpose of preventing the fraud, having shown themselves to be his creditors, and in danger oí losing their rights from their debtor’s fraudulent acts (Civil Code, art. 1985); and that all the allegations contained in the two petitions are fully supported by the evidence.
It has been urged, that the appellees have not proved that they have legally acquired the rights of Kellar, and that, as the regularity of the proceedings under the forced alienation were expressly put at issue, it was their duty to show their legality
II. This question, though hardly insisted on in the argument, deserves some consideration. It is true the supplemental petition of intervention sets up new matter, based upon a fact which occurred since the filing of the original petition; but it does not, in any manner, alter, nor change the substance of the original demand, to wit, that Kellar be recognised as the lawful husband of the deceased; it only shows that since.the inception of the suit, the plaintiff had perhaps no further right to prosecute it in his name, and that his rights and claims had apparently been transferred to another. But the action remains the same; it operates merely a change of parties, for whose benefit it is to be acted on; and we are not prepared to say that if, during the pendency of a suit, a third person acquires the right of the plaintiff, the former should not be permitted to intervene, and claim that the suit be carried on in his name and for his benefit. A distinction ought clearly to be made between an original action, and one by intervention. The latter is rather an incidental demand, the cause of which may have origitíated since the original one was substituted, and has. for
III. This point has been strenuously urged in the argument, but we think it untenable. The appellant’s counsel appears to consider the appellees’ intervention as a mere revocatory action, based upon article 1984 of our Code; and he has, therefore, contended, that it is prescribed by the lapse of one year. Civil Code, art. 1989. Now, supposing the intervention to have been instituted for that object, what is the contract or act to be revoked, and from what time would the prescription begin to run ? It cannot be pretended that Kellar has ever made any formal renunciation of his rights in favor of any one, nor that the heirs of the deceased have ever acquired any right under him, to his portion of the community with the deceased. As we
Upon the whole, we cannot recognise in the executor, after the fact of marriage was ascertained, any right to dispute and controvert the intervenor’s legal pretensions. As representing the succession of Sarah Baum, he is entitled to the one-half of the property belonging to the community, and to nothing more ;• the other half belongs to John Kellar, or perhaps to the purchasers of his rights; and we cannot see any valid reason why the executor should have taken upon himself to complain of the judgment appealed from, any further than with regard to the original matter at issue between him and the surviving husband. He pretends to be entitled to the whole, notwithstanding the proof of marriage. This sounds very much like collusion between him and Kellar, for the purpose of depriving the intervenors of their just rights against their debtor. Kellar became the executor’s co-appellant; but we feel authorized by the record to say, that this looks, on the part of the executor, like an attempt to assist him in the fraud which he intended to • perpetrate, and that such conduct cannot receive any sanction at our hands.
Judgment affirmed.