48 La. Ann. 356 | La. | 1895
The opinon of the conrt was delivered by
This case was appealed by D. M. Giddens from a judgment ordering him to file a final account of his administration of the succession of his deceased wife. He administered the same as tutor of his minor children.
For a fuller understanding of the issues involved, reference is made to the case of Rawlins vs. Giddens, reported in 46 An. 1136, and the decree on the application for a rehearing, same volume, p. 1145. In the decree on the rehearing our former decree was avoided and the judgment appealed from reversed, except that part of it against D. M. Giddens for the debt of the plaintiff, Rawlins. The right of the plaintiff, Rawlins, was “reserved by proper proceedings, to force a final settlement and liquidation of the community between D. M. Giddens and his deceased wife, Mary J. Armi-stead, and to subject to satisfaction, according to law, for his judgment, the interest of his debtor thus ascertained.” Under this decree the plaintiff proceeded against the tutor and administrator to compel him to “file a full and complete and fair account of his administration.” The necessary order was issued. D. M. Giddens, the tutor administrator, filed an exception to the petition of no cause of action, as he has no right to compel any account of, the succession of M. J. Giddens; that he does not show that he is a creditor of the said succession or an heir of the deceased. He further excepted that the two sons of D. M. Giddens. the sole heirs of said succession, had not been made parties. There is a community between D. M. Giddens and his deceased wife to settle. This the decree announces in the case of Rawlins vs. Giddens, before referred to.
Code Practice, 647; Noble vs Nettles, 3 Rob. 152; Mayo vs. Stroud, 12 Rob. 105; Dearmond vs. Courtney, 12 An. 251: Boisse and Husband vs. Dickson, 31 An. 747; Heirs of Fly vs. Noble, 37 An. 667.
The surviving spouse and the heirs can mortgage their undivided share or interest, as they own the same in full ownership, subject to the usufruct in favor of the former, and always burdened with the claim of the creditors. Dickson and Husband vs. Dickson, 36 An. 453. They can therefore sell or dispose of the same.
It is such a right of interest as can be seized and sold on execu - tion by a creditor of the surviving spouse, or of the heirs.
In such a case the purchaser would stand in the same relation to the community or the succession as the debtor would have done on a full and complete settlement of the same. He would be in a position on the final settlement, if there was anything left, to demand a partition and receive the interest which he had acquired. If he purchased the interest of the surviving spouse he would hold in indivisión with the heirs, and be in a position always, as they are, to protect the interest which he had acquired.
The plaintiff did not correctly interpret our decree in the reservation of his rights “to force a final settlement and liquidation of the community.” It was merely suggestive as to the proper remedy. The -proceedings adopted by the plaintiff would not have the effect
It is therefore ordered that the judgment appealed from be annulled, avoided and reversed, and it is now ordered that the plaintiff’s suit be dismissed, with the reservation in his favor, as announced in the decree in the case of Rawlins vs. D. M. Giddens et als., No. 11,480 on the docket of this court, and reported in 46 An. 1146.