44 La. Ann. 46 | La. | 1892
The opinion of the court was delivered by
Augusta Theze and Marcel Theze, being joint owners of the lot and property, with improvements, situated at No. 308 Decatur street, city of New Orleans, a one-half undivided interest was inventoried in each of their successions, which were separately administered — one by an executor and the other by an administrator.
Upon proper representations of the respective legal representatives of said successions, the proper judge granted two separate orders for the sale of said respective interests in said property, to pay debts of said successions, said sales being fixed for the same date, and were to be made on like terms. • •
Subsequently, the two mortuarise were cumulated and afterward treated and dealt with as one succession, and in this situation the sale was made and the property adjudicated to George Sick, at the price of $3400.
He having declined to accept title, said representatives ruled him to show cause why he should not comply with the terms of the adjudication, and, on the trial, his objections being found and adjudged untenable, said adjudicatee has appealed.
The grounds relied upon by defendant in rule are that the said successions, nor either of them, owed any debts, and there was no necessity for either an administration thereof or for the sale of the said property.
As a fact, it appears that the public administrator petitioned the court to be appointed administrator of one of said successions and dative testamentary executor of the other.
That this application was opposed by Henry Theze, an heir of the deceased, the ground of his resistance being that said deceased, nor their successions, owed any debts, and there was no necessity for an administration thereof, and if an administration was deemed
His opposition appears to have been overruled, on the ground first stated, and sustained on the other, he having been qualified and confirmed, and is now acting as administrator and executor.
As the proceedings appear to have been perfectly regular and as the court evidently had jurisdiction of the res, the objections of the adjudicatee do not appear to be jurisdictional, and are, therefore, unavailing to him.
We have so decided in many cases. .
It has long been the settled jurisprudence of this court that a purchaser at a judicial sale is held bound to ‘ ‘ look to the jicrisdietion of the court granting the order of sale, but the truth of the record concerning matters within its jurisdiction can not be disputed.” 14 La. 146; 15 La. 182; 7 R. 66; 7 An. 468; 14 An. 154; 26 An. 596; Webb vs. Keller; 29 An. 536; Frazier vs. Zyleck; 31 An. 280; Heineman vs. Janney.
Also, that the “purchaser at a judicial sale of property of the succession is not bound to look further back than the order of the court directing the sale.” Succession of Hubard, 18 An. 485; Woods vs. Hilliard Lee, 21 An. 505; 11 R. 72; 16 La. 440; Nesom vs. Weis, 34 An. 1004.
This doctrine has been repeatedly affirmed in more recent cases. Webb vs. Keller, 39 An. 55; Linman vs. Riggins, 40 An. 761; Succession of Lehman, 41 An. 987: Gale vs. O’Connor, 43 An. 413.
Our understanding of the adjudicatee’s defence is that the record is, in effect, untrue in its statement that the successions of the two decedents owed debts, necessitating an administration and sale. As such, it certainly and evidently invades the rule just announced, that “ the truth of the record concerning matters within the jurisdiction of the court” granting the order of sale “can not be disputed.”
In Webb vs. Keller, 39 An. 55, we maintained the validity of a sale made under an order of court, which had not been preceded by a tableau or statement of debts, and held that debts placed upon a tableau subsequently filed and homologated by the judgment of a competent court were sufficient, because that was “ a mere irregularity, and did not challenge the proceedings as.null and void.”
It is true that that suit was a revocatory action against an adjudi
“We do not regard the alleged irregularities, in the partition, of such a character as to cast a cloud upon the title of Madeline and John Bligh Byrne, in the sense of Gasson vs. Palfrey, 9 An. 560, and Succession of Webber, 16 An. 420. Indeed, the respondent urges no complaint of their title at all; his complaints are of irregularities in the partition proceedings alone.”
True it is that this court did hold, in Succession of Dumestre, 40 An. 572, that “ although a purchaser may be protected by the order of court directing a sale in a matter over which it had jurisdiction, yet he has the right to inquire into the validity of the proceedings, conducive to the order of sale, to ascertain whether, under the showing made, the court had the power to make the order.”
But we had occasion to examine that decision in reference to a suit like the instant one, in a subsequent case, and we said of it that it appeared that “ minors had an interest in the property,” and that, therefore, “ we viewed it as a partition proceeding in disguise, without the prescribed forms of law having been attended to, and that its covert purpose was to divest, illegally, the title of the minors.” Succession of Lehman, 41 An. 987.
Of course, the judge had no authority to thus order a sale in globo of minors’ property, for the purpose of a partition of a succession composed of sundry properties, the proceeds of the sale largely exceeding the debts due, and the result of which was to leave the surplus in the hands of a tutor dispensed from bond. That was an extreme case — one sui generis.
But in the successions of Auguste and Marcel Theze there is but-a single piece of property — that under consideration — which owed some small debts and the costs of administration. There is not shown to have been any cash in the hands of the legal representatives thereof, nor any revenues wherewith to discharge the same, and the heirs were of full age. There exists no parallel between the two cases.
After looking into the question very carefully, our judgment is convinced that the district judge correctly made the rule on the' adjudicatee absolute.
Judgment affirmed.
