37 La. Ann. 769 | La. | 1885
The opinion of the Court was delivered by
B. L, Saunders died in Bossier parish in 1852, and G-. W. Thompson qualified as dative executor and sold the property of the.
The questions are presented in oppositions to the final account of the executor which he filed in 1885 under a rule of the heirs.
Prescription is pleaded to the Gee judgment which was rendered in December 1854. It is not denied that the judgment was regularly paid up to June 1874. It was for interest on a specified portion of a fund and was annually satisfied. If the judgment were prescriptible, and the opponent Gee contends that it is not, being merely for the recognition of a right of usufruct, it would begin to run from June 1874, and the suit in 1882 interrupted it under the doctrine of Sue. Patrick, 30 Ann. 1075, recognized as established in Levy v. Calhoun, 34 Ann. 413.
It does not matter that the suit of 1882 was against Thompson individually and this is against him in a representative capacity. The cause of action is the same, the thing demanded is identical, and the parties are substantially the same. Nor is the fact that the former suit was in another court a prevention to its interruption of proscription. Levy v. Calhoun, ut supra.
A preliminary question of the admission of Thompson’s evidence is presented. It was taken in the Natchitoches suit and he was not present in the trial in Bossier whence this appeal comes. Its rejection is claimed because the suits are not identical in cause of action or in the parties, and was taken before a court without jurisdiction of the suit.
The objections are not tenable. The evidence would be admissible -on the ground that it is the admissions of a party to the suit, Hood v. Chamblis, 7 Ann. 106, but it is more. It is the declarations under oath o'f the party himself touching the identical subject of this suit made in .another wherein his adversary was the same as now, and it is himself
Tiie executor’s liability for interest to the usufructary is denied, and in support of that position it is said that as the money was left in his-hands because the usufructary did not give bond and withdraw it “the executor, whose relation to the fund is precisely that of owner, is no-more obliged to put out the money at interest for the nse and behoof of the usufructuary than he is to give the bond or special security for him.”
The Code directs that money upon which there is a usufruct shall be put at interest with the consent of the owner and if he refuse, by authority of the judge. Rev. Civ. Code, art. 563. We do not find it necessary to say upon whom lies the duty of forcing the investment of the money, whether upon the executor or the usufructuary. The executor’s counsel admits that his relation to the fund is that of owner, though of course the Saunders heirs were the ultimate owners of it, and as he failed to invest it in the obligation of any one else he must be held under the circumstances of this case to have invested it in his own, in other words to have retained the money in his own hands at interest. His conduct shows this to have been done. His payments of the interest through twenty years to the usufructary show his own construction of the matter, and Ms reasons for not continuing them will not bear scrutiny. He says he had in those twenty years paid Mrs-Gee more than the sum originally in his hands, as every one does who pays interest on a debt long enough. His contention is that the whole sum was absorbed by the annual payments to Mrs. Gee and therefore neither her heirs nor the Saunders heirs were entitled to anything.
The lower court gave judgment to the Saunders heirs for one-ninth of the estate, that being what had been left in the executor’s hands, viz $3,444.44 with interest from judicial demand, and to the Gee heirs for the unpaid interest upon that sum from the time the executor had ceased paying her, this time being erroneously stated 1884 instead of 1874, from which latter date it should run. The interest in favour of the Saunders heirs should run from the usufructuary’s death.
We do not think the judgment needs correction save in these particulars. There are some objections made to certain items of the account as not having any voucher. The. business is of long standing, and the executor swears he paid them and has lost the vouchers.
Tt is ordered and decreed that- the judgment of the lower court is amended so that interest upon the one-ninth of the estate shall run in favour of the Saunders heirs from the death of the usufructuary, and that the interest upon the same in favour of the Gee heirs shall run from June 17, 1874, to the death of the usufructuary, and as thus-amended that it is affirmed.