Succession of Cox

32 La. Ann. 984 | La. | 1880

The opinion of the Court was delivered by

Bermudez, C. J.

It appears from the pleadings and the evidence that after certain mortgaged real estate, belonging to this estate, had been ordered to be seized and sold by a District Court, and, after the sale ■thereof had been enjoined by the administrator, the Probate Court, on application made by the latter, ordered the sale of the same and other •property, composing the succession of the deceased.

At that sale the plaintiff in this proceeding became the adjudicatee of the real estate in question for $4000, which was, by consent, specially deposited to await the decision of the injunction suit and was not to be withdrawn without the formal consent of the adjudicatee.

Pending the appeal, an account was filed by the administrator in which this amount was placed to the credit of the succession. By consent, the taxes and the privileged debts due by the succession were paid out of ■this fund; $1874 of which only, still remain on deposit.

In the case of Lamorere vs. Succession of Cox, 32 A. 246, the Supreme Court held, that the injunction sued out by the administrator was unwarranted, and that the order of sale made by the Probate Court was -a nullity. The property, on being again offered for sale, was adjudicated to another person and the adjudicatee at the Probate sale was evicted ■from it.

The present proceeding was instituted to compel a return by the succession representatives, of the balance on hand, to this adjudicatee.

He resists the demand, claiming that the adjudicatee, being a pur•chaser in bad faith, ow u rents for the occupancy and enjoyment of the property and insists that the amount alleged to be thus due is chargeable to that fund.

A suit is now pending for the same purpose between the seizing creditor and the sheriff on one side, and the adjudicatee at the probate .-sale on the other.

It is clear that the resistance of the administrator is unwarranted, .not only because the amount claimed is unliquidated and not of equal dignity, and cannot be urged against a deposit, but specially, because if any rent be due, the succession representative has no standing in court -to claim the same. That right, if any such exist, can be exercised by the -unsatisfied seizing creditor only.

We have not been informed, and we are at a loss to conceive on what principle of law or justice a vendor, who has received and enjoyed and •who has failed to return the price of property assumed to be sold by him, to which he had made no valid title, and from which his vendee is after-wards judicially evicted contradictorily with him, can claim from the latter the value of the occupancy of the property, to which the title, made by him, was subsequently invalidated.

The authorities applicable to the views which we take of the case are ample and unquestionable. 9 A. 189 ; C. C.2956 ; 1M. 347; 3 A. 514; 7 A. 53 ; 12 A. 257; 32 A. 590 ; 6 R. 100 ; 3 M. 169.

It is therefore ordered that the judgment of the lower court be affirmed with costs.