97 So. 330 | La. | 1923
This is a proceeding by rule on behalf of Hugh Gilmore to compel the City Branch of the Whitney Central Trust & Savings Bank, and the three daughters of plaintiff, the issue of his marriage with Elizabeth Clark, deceased, to deliver to him as the surviving spouse of the community of acquets and gains formerly existing between him and his said wife, certain rent notes in the possession of said bank, and representing the rentals of two stores on South Rampart street in the city of New Orleans; said property forming a part of the assets of said community.
Plaintiff in rule alleges that said bank is illegally detaining from him said rent notes, and is thereby interfering with his administration and settlement of said community and the partition of its property.
The evidence shows that plaintiff married Elizabeth Clark in the year 18S5; that she died intestate in the year 1906, leaving three daughters; that plaintiff as surviving spouse and as usufructuary was placed in possession of all of the property belonging to said
The evidence further shows that plaintiff married Augusta Brunning in the year 1909, thereby forfeiting his right as surviving spouse to the usufruct of the half of the community property falling to his daughters at the death of his first wife. R. O. O. art. 916.
The succession of Elizabeth Clark was closed by plaintiff being placed in possession of all'of the community property as surviving spouse and as usufructuary by the judgment of the civil district court of date June 14, 1906.
The community having been fully liquidated, its assets divided, except as • to this store property, and plaintiff having lost his usijfruet by his second marriage, his daughters, who are of full age, are entitled to receive their half of the monthly rentals of this property.
If plaintiff is unwilling any longer to hold and enjoy this store property with his daughters in common, he has the right as co-owner to demand its partition immediately, and without any legal restraint from them. R. O. C. art. 1289.
The evidence also shows that S. L. Jacobs, the real estate agent, whose authority to lease these stores is denied by plaintiff in his petition, notified plaintiff by letter that he had leased this property for a term of 10 years at a monthly rental of $300, with the obligation on the part of the tenant to make all repairs, and to pay all increase in taxes over the present value of said property; that the said Jacobs had delivered said lease to the daughters of plaintiff, and had deposited said rent notes in the City Branch of the Whitney Central Bank to the joint account of the plaintiff and of. his daughters; and that plaintiff has received and accepted his half of said rentals monthly.
An unauthorized contract of an agent is ratified by the principal, who, when notified of such contract,, does not immediately repudiate it, but accepts the benefit arising under such contract. Ward v. Warfield, 3 La. Ann. 468; Flower v. Downs, 6 La. Ann. 540; Szymanski v. Plassan, 20 La. Ann. 92, 96 Am. Dec. 382; Mangum v. Bell, 20 La. Ann. 215; R. C. C. art. 3010.
The lease on these stores is therefore valid through ratification and is binding upon plaintiff, who has assumed the inconsistent position in this case of demanding the delivery of these notes to him, and, at the same time, attacking their validity for want of authority upon the part of the agent securing their execution. The usufruct of plaintiff having terminated by his second marriage, and the community having been liquidated, with the exception of this store property, his daughters have the right to receive their half of the rentals derived from this property, and, as plaintiff is paid each month his half of said rental, we see no good or just reason why the notes in question should be taken from their present custody and delivered to plaintiff.
The judgment of the lower court dismissing plaintiff’s rule is correct, and is affirmed, at appellant’s cost.
